Opinion
E046030
9-5-2008
K.C., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Brian Huerter for Petitioner. No appearance for Respondent. Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Real Party in Interest.
Not to be Published
Petitioner K.C. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court rule 8.452 (formerly rule 38.1( a)), challenging the juvenile courts order terminating reunification services as to her child, D.M. (the child) and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues that the juvenile court erred in finding there was not a substantial probability that the child would be returned to her care within the statutory time frame. We deny the writ petition.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2007, the San Bernardino County Department of Childrens Services (the department) filed a petition on behalf of the child, who was approximately four months old at the time. The petition alleged the child came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Essentially, the petition alleged that mother had a substance abuse problem and a mental disorder, and that she had failed to supervise and protect the child or provide him with a safe and sanitary home. The whereabouts of the childs father (father) were unknown.
Father is not a party to this writ petition.
In the detention report, the social worker reported that in December 2006, the department opened a Voluntary Family Maintenance (VFM) case after receiving a referral reporting general neglect by mother. Mother was 20 years old at that time, and she was developmentally delayed. She and the child lived with mothers cousin. Mothers cousin often had to remind mother to feed the child and change his diapers, since she would often neglect to do so. Mothers room was cluttered with unclean bottles, soiled diapers, and dirty clothes. The childs crib and bassinet where he slept were filled with items he could choke on, including Hot Wheels, plastic bags, and blankets. The social worker had to remind mother repeatedly to make doctors appointments for the child. At one point, the child had an extensive diaper rash, and mother had to be reminded to clean the skin and apply diaper cream with each diaper change. According to mothers cousin, mother was depressed. She drank alcohol, used marijuana, and wanted to "to go out and `party." Mothers cousin and her husband requested that mother move out from their home and obtain help for her substance abuse and depression issues, but they agreed to let the child stay. Despite the support received during the four months she was under the VFM plan, mother failed to properly care for the child. Thereafter, the department filed the current petition.
The detention hearing was held on April 5, 2007. The court detained the child in the home of mothers cousin and ordered reunification services pending further hearing.
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report recommending that reunification services be provided to mother. Father was located, but he told the social worker he was unable and unwilling to care for the child. The social worker had grave concerns regarding mothers ability to care for the child. The social worker developed a case plan requiring mother to participate in general counseling to address issues of codependency, depression, and bonding and attachment. It also required mother to participate in a parenting education program, substance abuse testing, and substance abuse counseling.
The department filed an amended section 300 petition on April 25, 2007, alleging that father was located but he was unable and unwilling to care for the child.
At the jurisdiction/disposition hearing on April 26, 2007, the matter was set contested on behalf of mother. The matter was continued.
At a mediation hearing, mother submitted to the allegations in the petition. She also agreed to complete parenting education classes, attend a perinatal program to include depression and substance abuse treatment, participate in random drug testing, and engage in counseling.
The court held a pretrial settlement conference on May 15, 2007, and found true the allegations in the amended petition. The court ordered mother to participate in the case plan and vacated the contested jurisdiction/disposition hearing.
Six-month Status Review Report and Hearing
The social worker filed a six-month review report recommending that mother be offered another six months of reunification services. Mother missed multiple counseling sessions. She had been engaging in services but had not shown sufficient benefit. She also missed visitation with the child multiple times, was unemployed, and did not have suitable housing. Mother lived with a maternal cousin (a different cousin) and slept on the couch. She paid her cousin with food stamps to "rent" the couch.
Mother told the social worker that she got very frustrated when she visited the child. She was not able to calm him when he cried, and she did not feel able to follow the babys schedule. The social worker consulted with mothers cousin (the caregiver), who confirmed that mother would get frustrated and give the child back to her when mother could not soothe him.
The social worker reported that mother had been authorized to take the child to her perinatal drug treatment program on a daily basis. The caregiver said she would send the child to the perinatal program with mother, along with seven diapers for the day. Mother regularly returned having used only one diaper for the entire day. Despite multiple reminders to change the childs diapers regularly, this pattern continued. Furthermore, the caregiver would send the child with baby food. Mother would be gone all day and would return from the perinatal program having used only half a jar or one jar of food for the entire day. Mother would return the other jars of baby food, formula, and water unopened.
The social worker reported that she spoke with the caregiver on the telephone on September 18, 2007. Mother had been authorized for visits twice per week, Tuesdays and Sundays. The caregiver said mother refused her visit on September 11, 2007, because she thought she "had enough with having [the child] all day at Perinatal." Mother said she only needed the Sunday visits.
The six-month review hearing was held on November 15, 2007. The court ordered additional reunification services and continued the matter for a 12-month status review hearing on May 15, 2008.
12-month Status Review Report and Hearing
The social worker filed a 12-month review report dated May 15, 2008, and recommended that the court terminate services and set a section 366.26 hearing, with adoption as the permanent plan. The social worker reported that mother completed an initial perinatal program but showed no benefit and/or comprehension of recovery from it. Mother had to be re-referred to another program, but had not yet completed it. Mother completed 24 counseling sessions, and a central focus of mothers case plan was addressing her codependency and cyclical relationships with males. Mother failed to inform her counselor that she entered into a relationship with a new boyfriend. After only knowing her current boyfriend a short time, she moved in with him and his family.
The social worker further reported that at visits, mother was only able to interact with the child for the first 45 minutes of the visits. During the last hour of the two-hour visits, she became frustrated and distracted and lost interest in the child. The social worker interviewed mother on April 11, 2008, and asked if mother felt she would be able to parent the child at this time. Mother stated she did not think she could manage the child on her own. She agreed that, at visits, she was only able to manage the first 45 minutes; she then became disengaged with the child and left him to his own devices. Mother said she could not "figure out what to do with the child after that amount of time." The social worker opined that, even after one year of interventional parenting education, supervised visitation, and regular feedback, mother still lacked the ability to parent her child effectively and safely, without constant supervision. The social worker further reported the child was in a relative home that was willing to adopt him.
The social worker filed an addendum report, also dated May 15, 2008. She stated that mother had not completed her case plan, continued to have significant codependency issues, was entirely dependent on her new boyfriend, had not followed up with a referral to the Inland Regional Center, and had failed to complete a drug treatment program. Mother was currently in the second phase of a three-phase outpatient program that would have to be followed by aftercare for an additional 60 to 90 days. The social worker strongly recommended termination of services and the setting of a section 366.26 hearing.
A contested 12-month hearing was held on June 17, 2008. Mother testified on her own behalf. She testified that she lived at the home of her boyfriends parents, but she did not pay rent. She had known her boyfriend for only one month before moving in, and she had been living there for about four months. She and her boyfriend shared a room, and if the child were returned to her, he would stay in the same room. Her boyfriend was recovering from drug abuse but had been clean for only a few months. He was not in a substance abuse program and was recovering on his own. Mother was not employed, but she received about $60 twice a month from her father. Her father was not legally obligated to give her the money. She also received food stamps.
The social worker testified, among other things, that mother had a pattern of going in and out of relationships with several different males. The social worker opined that mothers current relationship with her boyfriend was unhealthy because mother was dependent on him and had moved in with him after knowing him only a short time. The social worker was concerned that mother did not really know the individuals living in that household. It was unclear whether or not the boyfriend was committed to mother or to having a child in the home. Mother was not paying rent and had no contract to stay where she was living. Thus, the social worker was concerned that if there was a problem in that relationship and mother was asked to leave, she would have to move in with relatives whom the department may or may not be able to clear. Furthermore, the social worker was concerned about mothers financial ability to support the child. Mother did not appear to have any marketable skills to gain employment. Ultimately, the social worker recommended that the child not be returned to mother because mother had not shown improvement in her decision-making ability, even after having services for an extensive period of time. Mother had not improved on her pattern of codependency. Furthermore, mother had a low tolerance of frustration with the child. The social worker opined that mother did not have the capacity to parent him effectively past 40 minutes.
The court concluded there was no substantial probability that the child would be returned to mother in the next three months. Mother had received a lot of services and had made progress, but she seemed resistant to some of the objectives of the case plan. The court stated that it was going to follow the departments recommendation and adopted all the findings set forth in the May 15, 2008, addendum report. The court continued the child as a dependent of the court, terminated reunification services, and set a section 366.26 hearing.
ANALYSIS
The Court Properly Terminated Mothers Reunification Services and Set a
Section 366.26 Hearing
Mother argues that the court erred in finding there was not a substantial probability of return of the child. She claims the courts decision was based primarily on the fact that she had lived at her current residence for only four months. She contends the court had no evidence the home was inappropriate, but "got caught upon on the length of time [she] had resided in the home." We conclude that the court properly terminated reunification services and set a section 366.26 hearing.
Section 366.21, subdivision (f), provides, in relevant part that, "[a]t the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. The court shall order the return of the child to the physical custody of his or her parent or legal guardian 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 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. . . ." (§ 366.21, subd. (f).) In order to find a substantial probability that the child will be returned to the physical custody of his parent, the court must find that the parent has consistently and regularly visited the child, that the parent has made significant progress in resolving problems that led to the childs removal from the home, and that the parent has demonstrated the capacity and ability to complete the objectives of his treatment plan and provide for the childs safety, protection, physical and emotional well-being, and special needs. (§ 366.21, subd. (g)(1).)
Mothers claim that the court based its determination that there was no substantial probability the child would be returned to her custody on her living arrangements is simply belied by the record. The court was definitely, and properly, concerned about mothers current living arrangements with her boyfriends parents. However, this concern was only one factor of many upon which the court based its decision to terminate services. The court said that in making its decision, it considered the reports submitted and the testimony and argument of counsel at the hearing. The court specifically stated that it adopted the findings set forth in the addendum report of May 15, 2008. Those findings included that mother failed to make substantive progress in her case plan as described in the social workers reports, that custody by mother continued to be detrimental to the child, and that return of the child to her would create substantial risk of detriment to his safety, protection or physical/emotional being.
The evidence clearly supported the courts findings. The social workers reports showed that mother had not completed her case plan and had specifically failed to complete a drug treatment program. Since mother failed to benefit from her initial drug treatment program, she had to be re-referred to a second program. By the time of the 12-month hearing, she had not yet completed the second program. In addition, even after the final phase of that program was completed, she would still have to participate in aftercare for an additional 60 to 90 days.
Furthermore, mothers living arrangement was not stable. She had been living in her boyfriends parents home for only four months. She was not paying rent and was not on a lease. As noted by the court, the boyfriends parents, at any moment, could ask her to leave. Moreover, mother did not have the financial ability to support the child. Mother testified that she lived on food stamps and about $120 per month which she received from her father. However, her father was not legally obligated to give her money, meaning he could stop at any time. Mother was not employed at the time of the hearing, and she did not appear to have any marketable skills to gain employment.
Most significantly, mother was only able to effectively interact with the child for about 45 minutes at a time. During the last hour of her two-hour visits, mother became frustrated with the child, became distracted, and lost interest. About one month prior to the 12-month hearing, the social worker asked mother if she felt able to parent the child at that time. Mother admitted she could not manage the child on her own, and she agreed that during visits, she was only able to manage the first 45 minutes before becoming disengaged with the child and leaving him to his own devices. Mother said she did not know what to do with him after that time. The social worker opined that even after one year of interventional parenting education, supervised visitation, and regular feedback, mother still lacked the ability to parent her child effectively and safely, absent constant supervision.
In sum, there was more than enough evidence to support the courts determination that return of the child to mother would create a substantial risk of detriment to his safety, protection, and physical or emotional well-being.
DISPOSITION
The writ petition is denied.
We concur:
RAMIREZ, P.J.
GAUT, J.