Opinion
A102787.
7-18-2003
JEANETTE B., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
Jeanette B., the mother of nine-month-old Alexis, seeks writ review of an order terminating reunification services and setting a permanency planning hearing. She contends the record does not support the trial courts finding that reasonable reunification services were provided. She also contends the trial court erred by summarily denying her petition to modify the courts prior placement order without affording her an evidentiary hearing. We conclude that substantial evidence supports the courts finding that reasonable services were provided and that Jeanettes modification petition did not allege a prima facie case of changed circumstances. Accordingly, we deny the petition on the merits.
Jeanette gave birth to Alexis while incarcerated and Alexis was thereafter removed from her custody. Jeanette was paroled approximately one month later in November 2002. At the dispositional hearing held on December 3, 2002, Jeanette was advised by the court that because Alexis was under the age of three, reunification services would not extend beyond six months, unless the court found at the end of six months that there was a substantial probability that the child would be returned to the mother at the end of 12 months. Jeanette was arrested in late December for a parole violation and was reincarcerated in January 2003. In March 2003, Alexis was placed with her siblings in her great aunts home in Fresno, California. Shortly thereafter, Jeanette filed a petition under Welfare and Institutions Code section 388, seeking to remove Alexis from her aunts home and place her with Jeanette in a 12-month residential drug treatment program. At the six-month review hearing on May 14, 2003, the court summarily denied Jeanettes petition and set a permanency planning hearing. Jeanette seeks writ review of that order.
Petition to Modify
Under section 388, a dependency court order may be modified if the petitioning parent establishes changed circumstances and proves that the proposed change would promote the best interests of the minor. The parent is entitled to a hearing on his or her petition if the allegations contained in the petition state a prima facie case. (In re Marilyn H. (1993) 5 Cal.4th 295, 310, 851 P.2d 826.) Because the court summarily denied Jeanettes section 388 petition in conjunction with the hearing setting the permanency planning hearing, that decision is subject to writ review. (In re Charmice G. (1998) 66 Cal.App.4th 659.) We review the courts summary denial of a section 388 petition for an abuse of discretion. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.)
Jeanettes petition sought to remove Alexis from her placement with her great aunt and requested "An order allowing placement of the child in The Family Foundations Program, a 12-month live-in drug program, with the mother." The petition alleges the following changed circumstances: "The mother has the opportunity to serve a one-year commitment in The Family Foundations Program in lieu of a shorter state prison commitment for a parole violation. The Family Foundation Program is substance abuse program where mother and infant children can reside together." The trial court denied the motion, explaining, "I dont see a change of circumstances. I dont see this as being in the best interest of the minor. Maybe in Moms best interest; but not the minors best interest. And Mom really has made no progress towards getting herself together. Just the fact that she has the program available, doesnt make it in the best interest for the minor to be placed there with her. This is a six-month-old minor, and this is a child that needs to be permanently planned. [P] And Mom continues to put herself in a situation where shes in flux. She could have been out and dealing with these other issues, but she isnt. And now shes reincarcerated and now in a program doesnt make it in the best interest for the minor to be there."
At the time the petition was denied, Alexis had been living with her great aunt and siblings in Fresno for two months. An adoption assessment had been performed that indicated adoption by the great aunt was likely. At the same time, Mother had been reincarcerated on a parole violation after being on parole for only about two months. Under these circumstances, the trial court did not abuse its discretion by summarily denying the petition. The existence of a program is not a changed circumstance. Jeanette had not completed any portion of her case plan or demonstrated any ability to care for her child. (Compare with In re Aljamie D. (2000) 84 Cal.App.4th 424, 428 [petition alleged mother "had fully complied with the case plan, and attached completion certificates for parenting classes, a domestic violence program, [a drug rehabilitation program], a job readiness workshop, a perinatal health education program, and a behavior change & skills building prevention program"].) Moreover, placement in a 12-month program would not ensure successful reunification and would extend services well beyond the allotted time. Thus, modified placement was not shown to be in the best interest of the infant.
Reasonable Services
The trial court found at the conclusion of the six-month review hearing that Jeanette had been provided reasonable reunification services. We review the trial courts order to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.)
Jeanette contends the Alameda County Social Services Agency (the Agency) failed to provide reasonable services by failing to investigate placement with Jeanette in The Family Foundations Program. Jeanette submits that she notified the Agency of her potential acceptance in the program on March 28, 2003, but that the Agency would not consider the program because it had already determined that its recommendation at the six-month review hearing would be to terminate reunification services and set a section 366.26 hearing. The record, however, provides ample evidence in support of the courts finding. The Agencys failure to consider placement in the 12-month drug program does not render the services provided necessarily unreasonable.
It is undisputed that the services that were provided were appropriate. The report prepared for the six-month review hearing states, "The Agency provided service referrals to the mother and supported supervised visitations for the mother and minor before the mother became incarcerated. Since her incarceration, the Agency has remained in communication with the mother." Because Jeanette was placed on a maximum security hold, she was not able to have a contact visit with Alexis and was not able to participate in any programming while in jail. Accordingly, in March 2003, when the court authorized the placement of the infant in Fresno, it also relieved the Agency of any obligation to transport the infant to the jail for visitation. The Agencys refusal to consider placing Alexis with Jeanette in The Family Foundations Program does not undermine the reasonableness of these services.
Contrary to Jeanettes assertion, the Agency did initially investigate The Family Foundations Program. The Agencys interim review report filed on March 4, 2003, states, "During late February 2003, the mother was reported to have qualified for a mother and child program; however, the undersigned contacted Missy Doeschot, Moms program, Alameda County Sheriffs Office, . . . who reported no clear knowledge of the mothers disposition. . . . Ms. Doeschot did indicate mother was reporting an interest in a program entitled Family Foundations that is located in the San Diego area. Ms. Doeschot indicated the program included sentenced time and would take approximately two years." The placement was discussed briefly at the interim review hearing, but all decisions were deferred until resolution of Jeanettes criminal case.
When Jeanette informed the Agency at the end of March that she would be accepted into The Family Foundations Program if the court placed Alexis with her, the Agency reasonably refused to recommend placement there. As part of the original disposition in the case, Jeanette was referred to another residential drug treatment program and the court authorized the Agency in its discretion to place Alexis with Jeanette in the program for a 30-day trial visit. Jeanette failed to complete this program, and the Agencys refusal to consider a second lengthy placement was reasonable. This is particularly true since Jeanette has a long history of unsuccessful completion of numerous programs designed to reunify her with older children. As articulated by the trial court, a 12-month placement at this late date was not appropriate: "This minor has to be permanently planned. And, in my view, its too late. Because when you have an infant in the system, then were talking about six months to show the court that you are absolutely on track and another, maybe, six months to confirm what I already know to be true. And thats not happening here. [P] . . . Were starting out, maybe, depending on her performance for the next 12 months. Were talking about then this minor is 18 months and moving on towards her second birthday. And thats not how it works." In response to the mothers complaint that the program wasnt investigated, the court replied, "It doesnt matter for me — Im going to assume its a good program for Mom. [P] . . . [P] The timing of it for this infant and permanency for this minor is not good. Its not in the best interest. Assuming its a wonderful program in general, the timing isnt such that Im willing to take the chance that, for the next 12 months, Mom will be perfect so that at 18 months-which is well beyond the time I need to permanently plan for the minor-everything is going to be okay." Under the circumstances no additional investigation was necessary to determine that the program was not appropriate.
Disposition
The petition for extraordinary relief is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894, 838 P.2d 250.) Since the permanency planning hearing is set for September 3, 2003, this decision is immediately final as to this court. (Cal. Rules of Court, rule 24(d).)
We concur: Corrigan, Acting P. J., and Parrilli, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code unless otherwise indicated.