Opinion
No. H045356
03-07-2018
K.D., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17JU00053)
Petitioner K.D. (mother) challenges the juvenile court's order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing to select a permanent plan for her two-year-old daughter, B.M. In her pro per petition, she contends that she should be "reconsidered" for reunification services because she is now in a treatment facility, "at a stable point in my sobriety," taking parenting classes, attending weekly individual counseling, and "attending all scheduled visitation with my newborn 3x weekly." She asserts that she has a "great relationship" with her children, is "on the waitlist for Pueblo Delmar," and is "currently doing wonderful." Mother attaches to her January 12, 2018 petition a January 11, 2018 letter from Janus, a residential substance abuse treatment program, stating that mother entered treatment on January 5, 2018. The letter verifies that mother has "begun" counseling and parenting classes. We conclude that substantial evidence supports the juvenile court's order and deny mother's petition.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
The juvenile court case number on the petition is for only B.M. Although the petition names both B.M. and her older brother B.B., the court did not set a section 366.26 hearing as to B.B. because it continued his father's services and set a 12-month review hearing for June 2018. Thus, the only issue before us in this writ proceeding is the propriety of the court's order setting a section 366.26 hearing for B.M.
Mother gave birth to her third child in August 2017.
I. Background
Mother brought B.M. and B.M.'s older brother to California from Louisiana in December 2016 "to start a new life." B.M. and her older brother were placed in protective custody on February 28, 2017 after mother left them with the maternal grandmother in Santa Cruz County. Before abandoning the children, mother had been using methamphetamine and Xanax and experienced "a drug-induced rage." The maternal grandmother, who was unable to care for the children, contacted the Santa Cruz County Human Services Department (the Department).
B.M.'s alleged father denied paternity and did not participate in the proceedings.
On March 2, 2017, the Department filed a section 300 petition asking the court to take jurisdiction over both children due to mother's substance abuse and failure to provide care for the children. The court ordered the children detained. The Department referred mother for a substance abuse assessment in March 2017, and mother completed the assessment on March 9. The recommendation was for detox followed by residential perinatal treatment. However, mother, who was pregnant and facing criminal charges, was reluctant to enter a residential treatment program and did not follow through with multiple intake appointments.
In April 2017, the court found that the children's home state was Louisiana and took emergency jurisdiction over them pending an inquiry as to whether the Louisiana Child Welfare Department would be filing a petition in Louisiana. Mother's trial counsel informed the court that mother "will reside in California." She also told the court that mother would be entering a treatment program on April 7. The Louisiana court initially told the Santa Cruz court that the Louisiana court would be exercising jurisdiction over the children. Mother's trial counsel asked the court to retain the case in Santa Cruz County. The court found that the Louisiana court had exclusive jurisdiction over the children under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.), but the Santa Cruz court retained emergency jurisdiction for 30 days. After that hearing, mother did not enter a treatment program, did not participate in drug testing, and missed many of her scheduled visits with the children.
At a May 9, 2017 hearing, the Santa Cruz court announced that the Louisiana court had determined that it "does not have exclusive jurisdiction . . . ." The Louisiana court had informed the Santa Cruz court that no dependency case was pending or would be filed in Louisiana, that California "was a more convenient forum," and that it "declined jurisdiction" over the matter. The Santa Cruz court found that California had "substantial information" relevant to the children's care, mother had a "significant ongoing relationship" with California, and it would be in the children's best interests for the case to be heard in California, so it took jurisdiction over the children. (Fam. Code, § 3421.) The jurisdictional and dispositional hearing was set for May 22.
At the May 22, 2017 hearing, mother testified that she had been "clean" for a month and a half and had been pregnant for seven months. She admitted that she had used methamphetamine while she was pregnant, and she claimed that she had not pursued substance abuse treatment because she "didn't want to give up my stability as far as being outside." Mother insisted "I'm stable now," though she admitted she had a substance abuse problem. She also admitted using methamphetamine in March 2017, and she testified that she had not participated in drug testing. The court found that mother's testimony that she was "clean" was "just not credible."
The court took jurisdiction over B.M., removed B.M. from mother's custody, placed her in foster care, and granted mother reunification services including supervised visitation three times a week. Mother's case plan required her to (1) complete a drug and alcohol assessment and follow any recommendations, (2) drug test and consistently test negative, (3) obtain general counseling and substance abuse counseling, and (4) complete a parenting education program. The court told mother that failing to complete her case plan within six months could lead to termination of reunification services. "So you need to understand that this six months happens really quickly. And I want to make sure that you get engaged in your case plan as soon as you can."
Despite multiple efforts by the Department, mother did not obtain any substance abuse treatment in May or June 2017. She also missed most of her scheduled visits with the children during this period, and although she had been referred for drug testing, she missed 24 scheduled tests. In July 2017, when she was 32 weeks pregnant, she was hospitalized and tested positive for amphetamine and benzodiazepine. It was only at this point that mother entered a substance abuse treatment program. She entered Janus's residential detox program, followed by Janus's residential perinatal substance abuse treatment program. In August 2017, mother gave birth to her third child, M.M. She attended most of her scheduled visits with the children from August through early November 2017, but she missed most of her visits after that. Even when she attended her visits, mother was often significantly late.
In early September 2017, mother relapsed, and she was discharged from Janus on September 21, 2017. She was again referred for drug testing, but she failed to test 21 times out of 24 scheduled tests. Two of the three times she tested the tests were positive; her only negative test was in mid-October 2017. Although mother was scheduled for intake at another Janus treatment program in early October, she was a no-show, even after the intake was rescheduled at her request. Mother subsequently told the social worker that she was going to enter an outpatient treatment program. She did not do so. Mother did enter a residential treatment program in late October, but she remained for only one day. Mother was in a car accident two days later, and she was hospitalized with injuries from the accident for four days. After her release, her ability to enter treatment was hindered by the pain medications she was taking for her injuries. Another intake at Janus was scheduled for mid-November 2017. She attended this intake but was not able to enter the program because she tested positive for controlled substances. Another intake interview was scheduled for November 29, but she did not attend it. She told the social worker that she did not attend because she would have " 'tested dirty.' "
Meanwhile, in September 2017, the Department filed a supplemental petition because the children's placement had failed. The court ordered the children placed in a new concurrent foster home.
At the December 13, 2017 contested six-month review hearing, the Department recommended that mother's reunification services be terminated as to both children but that services for B.B.'s father be continued. Mother admitted that she had not done much to pursue substance abuse treatment since September 2017. She had gone to "a couple" of NA meetings and had recently been trying to get into Janus again. Mother told the court that she would be entering Janus that day. She asked the court to give her additional reunification services because "my kids need me."
The court found that mother had not regularly participated in services and had made minimal progress on her case plan. It terminated her reunification services. A section 366.26 hearing was scheduled for April 10, 2018 for B.M. Mother filed a timely notice of intent to file a writ petition challenging the court's order setting a section 366.26 hearing.
II. Analysis
Mother claims that the juvenile court should have granted her additional reunification services because she had finally committed to working on her case plan.
At the six-month review hearing, "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. In making its determination [whether return would be detrimental], the court . . . 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 to services provided . . . ." (§ 366.21, subd. (e)(1).) "If the child was under three years of age on the date of the initial removal, . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may [at the six-month review hearing] schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . . , may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3).)
" 'We review an order terminating reunification services to determine if it is supported by substantial evidence. [Citation.] In making this determination, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." [Citation.]' [Citation.]" (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028.)
Mother's case plan required her to (1) complete a drug and alcohol assessment and follow any recommendations, (2) drug test and consistently test negative, (3) obtain general counseling and substance abuse counseling, and (4) complete a parenting education program.
Although mother had attended a substance abuse assessment in March 2017 that recommended residential treatment, she admitted that she did not obtain any substance abuse treatment until July 2017. She entered a program in July 2017, but she left that program in September 2017 after she relapsed because "I had too much on my plate at the time." She made no effort thereafter to address her substance abuse other than to attend a couple of NA meetings and enter an outpatient program for a day or two, and she either missed intake interviews for programs or was found in ineligible due to her continuing substance abuse. Mother virtually never drug tested, missing 45 scheduled tests, and two of the three times she actually tested, her drug tests were positive. It was obvious that she was continuing to abuse drugs.
Mother also failed to satisfy the case plan's counseling and parenting class requirements. Mother testified at the December 2017 hearing that she had attended three counseling sessions while she was at Janus. However, the Department presented evidence that mother had attended two of four counseling assessment sessions before being terminated for absenteeism. Mother also testified that she had attended two parenting classes, but she had been unable to complete them because "it was too much on me at one time." The Department's evidence showed that mother attended just a portion of one session of a parenting class before deciding to terminate her participation because she had "a lot on her plate." Mother admitted that she did not consistently visit the children, which she explained was because "I've just had many problems that have been going on in my life right now."
The evidence before the juvenile court established that mother simply lacked the willingness to engage in her case plan. Her reason for failing to obtain substance abuse treatment, failing to drug test, failing to obtain counseling, failing to complete parenting classes, and failing to consistently visit her children was that she had "too much" going on in her life to devote the necessary time to her case plan. Nothing outside of mother's control prevented her from working on her case plan. Thus, we conclude that substantial evidence supports the juvenile court's determination that mother failed to regularly participate in services and to make substantial progress on her case plan.
The primary problem that led to the need for the Department's intervention was mother's substance abuse. Despite referrals for drug testing and substance abuse treatment, mother delayed for months taking any action directed toward conquering her addiction. She did not drug test. Her one stay in a substance abuse treatment program coincided with the impending birth of her third child and ended soon after that child was born. Mother's claim that she had "too much on [her] plate" to fulfill her case plan objectives lacks merit in light of the fact that all of her children were in the care of others, she was unemployed, and she was not even consistently participating in supervised visitation. The juvenile court's characterization of mother's progress on her case plan as "minimal" was accurate.
III. Disposition
The petition is denied.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Greenwood, J.