Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. Nos. JD107713-00 & JD107714-00. Kenneth C. Twisselman II, Judge.
Lesha J., in pro. per., for Petitioner.
No appearance for Respondent.
B.C. Barmann, Sr., County Counsel and Susan M. Gill, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22) terminating reunification services and setting a section 366.26 hearing as to her daughter L. and son D. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is a mother of nine children. She has a long history of drug abuse, which began at the age of 15. By 28, she was using cocaine on a daily basis and would continue to use it on a regular basis until these dependency proceedings were initiated in 2005. Petitioner’s six oldest children are being raised by their fathers, the seventh and eighth children, L. and D., are the subjects of this writ petition and the ninth child, I., was born during the course of these proceedings and allowed to remain in petitioner’s custody.
Petitioner also has a history of narcotic possession and prostitution as well as child welfare intervention. In August 2000, then two-year-old L. was removed from petitioner’s custody in Utah after petitioner was arrested for possession of a stolen vehicle, forged documents and false identification. Petitioner was provided reunification services and, in February 2001, L. was returned to petitioner’s custody and dependency jurisdiction was terminated. Two months later, D. was born and both he and petitioner tested positive for cocaine. Consequently, L. and D. were taken into protective custody, adjudged dependents of the court and placed with relatives for several months. Petitioner participated in reunification services after which the children were returned to her custody. Dependency jurisdiction was terminated in January 2002.
In March 2002, then three-year-old L. and 11-month-old D. were taken into protective custody in Utah after petitioner left them alone for several days. The court assumed dependency jurisdiction, which it maintained while petitioner completed an 18-month residential drug treatment program.
The instant dependency proceedings were initiated in July 2005 after petitioner left the children with relatives while she went on a five-day drug and alcohol binge. Upon her return, she was arrested on a felony warrant and seven-year-old L. and four-year-old D. were taken into protective custody by the Kern County Department of Human Services (department).
The juvenile court adjudged the children dependents of the court and ordered reunification services for petitioner and D.’s father, R. L.’s father was deceased. Petitioner’s services plan required her to participate in counseling for child neglect, parenting and substance abuse, submit to random drug testing and complete a psychological evaluation. The court also ordered weekly visitation with the children who were placed with relatives.
During the first six months of reunification, neither petitioner nor R. made any attempt to participate in services or visit the children. In fact, petitioner’s whereabouts were unknown when the department filed its six-month status report in March 2006. Nevertheless, at the six-month review hearing, the court ordered the department to continue services to the 12-month review hearing as provided by statute (§ 361.5, subd. (a)(1)) and set the hearing for September 2006.
The 12-month review hearing was continued several times and conducted in November. By that time, petitioner was living in Oakland and had delivered her ninth child. In May, she entered an inpatient substance abuse treatment program, which she left within the month because she could not afford the fees. She promptly entered a 90-day outpatient substance abuse treatment program, which included counseling for parenting and neglect. From May through July, petitioner drug tested four times and the results were negative.
In August, petitioner was arrested for failing to contact her probation officer and was in jail until mid-November. Nevertheless, she successfully completed outpatient treatment and was awarded a certificate. She also maintained telephone contact with L. and D.
In its 12-month status review, the department recommended the court terminate petitioner’s reunification services reasoning that completion of a 90-day drug treatment program and four negative drug tests for someone with her drug abuse history was insufficient to establish her sobriety. Further, despite some effort, petitioner had not scheduled a psychological evaluation.
The juvenile court did not adopt the department’s recommendation with respect to petitioner and, at the 12-month review hearing in November, continued her services to January 2007, the time set for the 18-month review hearing. The court adopted the department’s recommendation as to R. and terminated his services.
The 18-month review hearing was continued several times and eventually conducted in May 2007. Meanwhile, several significant events occurred. In December 2006, petitioner was arrested for passing a false traveler’s check. She was convicted, sentenced to two days in jail and placed on two years probation. In February 2007, petitioner was evaluated by court-appointed psychologist Dr. M. to determine if the children could be safely returned to her custody.
Dr. M. concluded petitioner suffers from a moderate to severe mental disorder certain features of which place L. and D. at risk of further neglect and abandonment. Specifically, Dr. M. referred to petitioner’s overall lack of insight into her psychological functioning as well as her antisocial behavior, chronic substance abuse and narcissistic traits. He recommended she continue to participate in substance abuse treatment and in an additional 6 to 12 months of individual and group treatment followed by relapse prevention groups for another year or two after that. He did not recommend the children be returned to petitioner’s care until she demonstrated the ability to live independently in the community, stay out of jail and maintain sobriety for one year.
Petitioner’s therapist of seven months offered a contrary opinion and recommendation, which she set forth in a letter to the court. She stated petitioner complied with her case plan requirements and demonstrated an ongoing recovery and ability to parent her children, which the therapist attributed to petitioner’s strong support system and spiritual practice. She stated petitioner actively participated in therapy, maintained sobriety for 10 months, and demonstrated a loving and nurturing relationship with I. She recommended the court return L. and D. to petitioner’s custody.
Another psychologist, at petitioner’s request, conducted a second evaluation of her personality and functioning and issued a report concurring in the therapist’s opinion. Although the psychologist administered different psychological testing, he concurred in Dr. M.’s clinical findings with respect to petitioner’s impaired insight and antisocial disorder. However, he did not believe return of the children should be conditioned on a year of proven sobriety. Rather, he recommended the court return the children to petitioner’s custody but require petitioner to participate in outpatient drug treatment and weekly individual therapy for an additional year, submit to random drug testing and attend Narcotics Anonymous meetings.
On May 3, 2007, the court conducted a contested 18-month review hearing. Dr. M. testified for the department and did not waiver in his conclusion L. and D. could not be safely returned to petitioner’s custody. He testified that the results of the psychological testing combined with petitioner’s history presented serious concerns about her ability to bond with her children and care for them on an ongoing basis. Neither the psychologist nor petitioner’s therapist was called to rebut Dr. M.’s testimony. Petitioner testified she had been drug-free for a year, continued to participate in services and had a suitable home for her children.
Following testimony, petitioner’s attorney argued petitioner’s special psychological needs warranted continued services. At the conclusion of the hearing, the court determined return of the children to petitioner’s custody would expose them to a substantial risk of detriment. In so finding, the court found Dr. M.’s opinion most persuasive. The court further found petitioner was provided reasonable services and made acceptable efforts and availed herself of services but found no evidence petitioner had special needs, which would justify continuing reunification. Consequently, the court terminated petitioner’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues Dr. M.’s opinion she requires ongoing psychotherapy established a “special need,” which, under the authority of In Re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.), warranted continued services. Therefore, she claims, the juvenile court abused its discretion in terminating her reunification services at the 18-month review hearing. We disagree.
While the Legislature contemplated an 18-month limitation on family reunification, the juvenile court is not statute-bound to terminate reunification efforts just because 18 months have elapsed. (§ 366.22; Elizabeth R., supra, 35 Cal.App.4th at p. 1794.) Rather, the juvenile court retains discretion, albeit limited, to extend reunification services beyond the 18-month limitation in a special needs case. (Elizabeth R., supra, at pp. 1793-1799.)
The cases in which courts have found special needs involved extraordinary circumstances through which some external factor prevented the parent from participating in the case plan. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) For example, extraordinary circumstances warranting continued services were found where no plan of reunification was offered (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777), where services offered were inadequate (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209) or, as in the case petitioner cites, Elizabeth R., where the best interests of the child would be served by a continuance of the 18-month review hearing (Elizabeth R., supra, 35 Cal.App.4th at pp. 1797-1799).
In Elizabeth R., the juvenile court reluctantly terminated reunification services at the 18-month review hearing for a mentally ill mother who had an exemplary record of visitation and efforts to comply with her reunification plan. (Elizabeth R., supra, 35 Cal.App.4th at p. 1783.) Though impressed with the mother’s progress and ability to sustain her mental health, the court believed it had no choice but to terminate reunification services. (Ibid.) The case proceeded to permanency planning and the mother’s parental rights were terminated. (Id. at p. 1786.) On appeal, the case was remanded for the juvenile court to entertain a section 352 motion for a continuance of services beyond the statutory limitation. (Id. at p. 1799.) The appellate court concluded section 352 provides an “emergency escape valve” in cases where the juvenile court determines the best interest of the child would be served by a continuance of the 18-month review hearing. (Id. at pp. 1798-1799.)
Subdivision (a) of section 352 allows the juvenile court to continue any juvenile dependency hearing beyond the time limit within which the hearing is otherwise required to be held upon a showing of good cause and provided a continuance will not be contrary to the interest of the minor.
Petitioner’s case is distinguishable from Elizabeth R. in several key respects. Unlike the juvenile court in Elizabeth R., the juvenile court in this case was aware it had the discretion to continue services if it found special circumstances warranted it. The court simply did not find any evidence of special circumstances. Further, petitioner’s efforts toward reunification, though acceptable, were not exemplary. Moreover, according to Dr. M., petitioner’s ability to achieve sufficient mental health to properly care for the children on an ongoing basis was dubious. Finally, there is no evidence that L. and D.’s best interests would be served by continuing attempts at reunification. At a minimum, they would remain out of petitioner’s custody for another year, if Dr. M.’s recommendation were followed, during which petitioner would be required to participate in therapy, obtain suitable housing and prove herself sober and law-abiding. Given petitioner’s potential to relapse and abandon her children, there is no reason to defer their permanency while petitioner attempts to prove herself. We find no abuse of discretion.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.