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Kim K. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Dec 20, 2018
No. G056864 (Cal. Ct. App. Dec. 20, 2018)

Opinion

G056864

12-20-2018

KIM K. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

Law Office of Juvenile Defenders and Donna Chirco, under appointment by the Court of Appeal, for Petitioner Kim K. Sharon Petrosino, Public Defender, Ken Norelli and Brian Okamoto, Deputy Public Defenders, for Petitioner Gary G. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Parties in Interest. No appearance for Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP0462, 16DP0463) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Sherri L. Honer, Judge. Petition denied. Law Office of Juvenile Defenders and Donna Chirco, under appointment by the Court of Appeal, for Petitioner Kim K. Sharon Petrosino, Public Defender, Ken Norelli and Brian Okamoto, Deputy Public Defenders, for Petitioner Gary G. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Parties in Interest. No appearance for Respondent.

* * *

In 2016, the Orange County Social Services Agency (SSA) took the children of Kim K. (mother) and Gary G. (father) into protective custody. After providing reunification services for over two years, the juvenile court found that the return of custody to the parents would present a substantial risk of detriment to the children's safety, protection, and well-being. The court terminated reunification services and set a future hearing regarding parental rights. (Welf. & Inst. Code, § 366.26.)

Further undesignated statutory references will be to the Welfare and Institutions Code.

Mother has filed a petition for an extraordinary writ of mandate/prohibition in this court seeking to vacate the juvenile court's orders. She argues that substantial evidence does not support the court's factual finding of detriment. We disagree and deny the mother's petition for extraordinary writ relief.

I

FACTS AND PROCEDURAL BACKGROUND

In April 2016, three children—Jadien (13 years old), Logan (8 years old), and Peyton (7 years old)—were living with mother and father in an abandoned house in Garden Grove that had been taken over by squatters. SSA noted that: "The entire home was filled with trash, insects, cobwebs, moldy clothing, rotted food and broken furniture." A registered sex offender had been living on the property. SSA took the children into protective custody.

Jadien is not a party to this appeal.

Juvenile Dependency Petition

In May 2016, SSA filed a juvenile dependency petition and prepared a detention report describing the family's living conditions. SSA alleged that mother and father had substance abuse problems and a history of domestic violence. Jaiden said that mother and father used to hit each other, but not anymore, "at least they don't do that in front of us." Logan was dirty and was wearing dirty clothing. Peyton's teacher reported that she came to the school looking dirty and malnourished. The court detained the children and granted the parents monitored visitation. The court ordered SSA to provide "reunification as soon as possible to reunify the child[ren] with family."

Reunification Services

Mother and father submitted on the accusations alleged in the petition. The children remained in out-of-home care while the parents were given reunification services. Mother's case plan included individual counseling, parent education, substance abuse treatment, substance abuse testing, and a twelve-step program. Mother checked herself into a detox facility, but she checked out five days later. Mother did not attend parenting classes and was discharged from therapy for failing to show. Police arrested mother for violating a restraining order (returning to the previous residence).

Six-Month Review Period

In February 2017, the parents were homeless and sleeping in father's car. Mother and father reported that they had relapsed and were using methamphetamine. Mother left a sober living home. Mother was terminated from her parenting program. Mother had missed 17 drug tests and tested negative five times. Father had a warrant for his arrest (a probation violation). The parents were occasionally visiting the children, but the parents cancelled 17 visits and ended a few visits early.

In March 2017, mother was residing in a new sober living home, but she was struggling to pay the rent and was looking for employment. Mother was not participating in other case plan services. Mother reported being sober for five days. Mother enrolled in an inpatient drug treatment program and completed the detox portion of the program, but she was discharged from the program because she was unable to pay. Mother reported that she had relapsed and was using methamphetamine. The parents were homeless and living in father's car. They had not visited the children for several weeks.

12-Month and 18-Month Review Periods

In June 2017, mother attempted to enter another residential drug treatment program, but the program did not accept her insurance. Mother reported being sober since May, but she was not compliant with monitoring requirements. Mother had not attended parenting classes. Father spent some time in jail and his whereabouts were unknown.

In September 2017, mother began an outpatient drug treatment program, but did not comply with a drug patch test. Mother missed drug tests in October, which counted as positive tests. However, as of December 2017, mother was compliant with her outpatient drug treatment program and had been testing negatively.

The children's caregivers reported that the children were doing well and were happy in their home. The children reported feeling safe and comfortable. Peyton became very attached to her caregivers, calling them mommy and daddy. Peyton wanted her caregivers to adopt her. Logan refused to discuss adoption. Mother visited inconsistently. The caregivers reported that the children became anxious before visits; the children were nervous about whether mother would show up and were nervous about seeing her. Sometimes after the visits, Payton had trouble sleeping and would come into the caregivers' bed. Mother continued to tell the children that they would be living with their parents shortly, and the children returned from the visits anxious and confused.

24-Month Permanency Review Hearing

The juvenile court conducted a permanency review hearing over multiple dates in August and September 2018. (§ 366.22.) The court found that reasonable reunification services had been offered; the court found that returning the children to parental custody would create a substantial risk of detriment. The court terminated reunification services and set a section 366.26 hearing. The court allowed for continued monitored visitation by the parents.

The evidence presented at the permanency review hearings will be summarized in [the] substantial evidence analysis.

II

DISCUSSION

Mother argues that the juvenile "court erred in failing to return the minors" to her custody "because substantial evidence did not exist they would be at risk in [her] care." (Original capitalization and boldfacing omitted.) We disagree. A. Relevant Legal Principles

The standard of review in juvenile dependency cases is sufficiency of the evidence. That is, we review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court's conclusions. "All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [juvenile court's ruling], if possible." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547, superseded by statute on another ground in In re David H. (2008) 165 Cal.App.4th 1626, 1642, fn. 14.) "'If there is any substantial evidence to support the findings of [the] juvenile court, a reviewing court is without power to weigh or evaluate [those] findings.'" (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1361-1362.)

In a permanency review hearing: "The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment . . . . The failure of the parent . . . 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, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; [the court] shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided . . . ." (§ 366.22, subd. (a)(1), italics added.)

Where a child is not returned to the parent at the permanency review hearing, "[t]he court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, . . . guardianship, or continued placement in [long-term] foster care is the most appropriate plan for the child. . . . The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child." (§ 366.22, subd. (a)(3).)

"Family preservation is the priority when dependency proceedings commence. [Citation.] 'Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." [Citation.]' [Citation.] Therefore, reasonable reunification services must usually be offered to a parent. [Citation.] SSA must make a '"'good faith effort'"' to provide reasonable services responsive to the unique needs of each family. [Citation.] '[T]he plan must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding. [Citation.]' . . . The adequacy of SSA's efforts to provide suitable services is judged according to the circumstances of the particular case. [Citation.]" (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501.) Again, we review the juvenile court's finding of reasonable services for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) B. Substantial Evidence Analysis

On June 28, 2018, mother tested positive for methamphetamine use (approximately three months before the hearing). Mother admitted that she had been a drug addict for nine years. Mother had participated in various drug treatment programs for the duration of the reunification services (over two years). While there were extended periods of sobriety, mother repeatedly relapsed. A social worker reported that "[t]he mother continues to deny drug use, despite positive test results. A relapse prevention plan is unable to be created, implemented, and maintained due to the mother's denial of any substance use."

The juvenile court found that there was a likelihood that the parents would be unable to "maintain a stable, sober lifestyle for the remainder of the children's childhood." The court also found that "[t]he extent of progress by which has been made . . . towards alleviating or mitigating the causes necessitating placement by the mother and the father have been moderate." Given the mother's cyclical pattern of relapse and instability, and the difficulty in implementing a relapse prevention plan due to mother's denial of substance abuse, the court's finding that mother would be unable to maintain a stable lifestyle for the remainder of minors' childhood is supported by the evidence.

During the period of March 2, 2018, the children were having unmonitored, overnight weekend visits with their parents. Mother testified that for at least one of those weekend visits, she was aware that some of her housemates were using drugs; she passed by a housemates' room and saw the housemate using methamphetamine. Nonetheless, mother brought the children into the home. Although the parents were staying in a detached part of the home, the parents and the children had to enter the main home to use the shared bathroom and kitchen. Mother had smelled methamphetamine smoke in the shared bathroom, and had seen steam that might be smoke.

According to the juvenile court, this incident was: "One of the biggest concerns this court has . . . ." The court said that "one of the reasons why this case started in the first place was . . . not just the parents' substance abuse, but that their substance abuse resulted in the children being exposed to living situations that were harmful and of detriment to the children, them being exposed not just to the parents' substance abuse, but to the other -- abuse by other methamphetamine users and drug users." The court told the mother that the incident is "concerning to me, because after 24 months and all that you've gone through and you've learned, that you still exposed the children to a significant risk to the children's health and safety."

The juvenile court concluded that "there's still a detriment to the children in returning them, that there's a significant lapse of judgment that significantly exposed the children to danger." The court's factual finding is supported by evidence in the record, including: the testimony of a senior social worker, who documented in detail what occurred over the period of the reunification services; the testimony of a forensic chemist, who testified as to the father's methamphetamine use; and the testimony of the father, who testified as to his own drug use; and there were a myriad of reports concerning the caregivers that were reviewed by the court. Thus, the court's finding is supported by substantial evidence.

Mother argues that at the time of the 24-month hearing, she was living in an approved sober living home, she was employed, and had completed all aspects of her service plan. Mother further argues that "the social worker even testified that but for mother's positive drug patch, she would have returned the children to the mother's care." But these facts were presented and considered by the juvenile court. Mother seems to somewhat misapprehend our role as an appellate court. We are not going to reweigh the evidence. In a substantial evidence review, our task is narrow. Having found substantial evidence to support the juvenile court's factual findings, we are "'without power to weigh or evaluate those findings.'" (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361-1362.)

Mother argues that Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.), compels a different result. We disagree. In Jennifer A., the juvenile court entered an order terminating reunification services for mother and two children. Mother petitioned for a writ of mandate, and the Court of Appeal granted the petition. (Id. at p. 1326.) The evidence showed that the mother was in general compliance with the reunification services plan, that no one had ever expressed any concern about the living conditions in the family home, and the mother had "always acted appropriately" during visits. (Id.at p. 1345.) The Court of Appeal concluded that the only evidence to support the juvenile court's ruling was the "'opinion'" of the social worker, unsupported by foundational facts. (Id. at p. 1346.)

Here, in contrast with Jennifer A., supra, 117 Cal.App.4th 1322, there was substantial evidence that mother had a long-standing addiction to methamphetamine, and that she continually relapsed. Further, there was evidence that mother had exposed the children to dangerous conditions—living with drug users—as recently as within three months of the 24-month hearing. Thus, Jennifer A. is readily distinguishable.

III

DISPOSITION

The petition is denied.

MOORE, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.


Summaries of

Kim K. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Dec 20, 2018
No. G056864 (Cal. Ct. App. Dec. 20, 2018)
Case details for

Kim K. v. Superior Court

Case Details

Full title:KIM K. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Dec 20, 2018

Citations

No. G056864 (Cal. Ct. App. Dec. 20, 2018)

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