Opinion
E034022.
10-8-2003
MARIA M., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Alvarenga & Drake and William E. Drake for Petitioner. No appearance for Respondent. Ronald D. Reitz, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Real Party in Interest.
Petitioner Maria M. ("Mother"), the mother of Eric M. and Adam B., claims the trial court erred in terminating reunification services and setting the Welfare and Institutions Codesection 366.26 hearing. She contends that there was insufficient evidence to support the courts findings that the return of the children would create a substantial risk of detriment to their well-being. We disagree and deny the petition.
FACTUAL AND PROCEDURAL HISTORY
In June 2001, six-month-old Eric was taken into protective custody by the Department of Childrens Services (Department) after Mother and her boyfriend were arrested for physically abusing her children. Eric, his half-brother Kenneth, age six, and half sisters Natalia, age four, and Mia, age one, all resided with the mother and her boyfriend. Kenneth reported that Mother and her boyfriend hit him and Natalia with a belt. Both Kenneth and Natalia had bruising caused by Mother and the boyfriend grabbing them. Both children said that the boyfriend had held a lighter to Mias diaper and burned a portion of it. Mother observed this and did nothing to stop it.
On June 27, 2001, a petition was filed that alleged that Eric came under section 300 because Mother had a substance abuse problem which interfered with her ability to parent and because she failed to protect her children from physical abuse from her live-in boyfriend.
At the jurisdictional-dispositional hearing on September 5, 2001, the petition was amended to allege that Mother physically abused her children, that she failed to protect them from her boyfriends physical abuse, and that she has a drug problem that interferes with her ability to parent, specifically that she fed Eric watered-down milk instead of formula. Mother submitted based on the report as amended, and the court found the allegations in the amended petition true.
The objectives of the Mothers reunification plan included requirements that she demonstrate her ability and willingness to have custody of her children, stay free from illegal drugs, show her ability to live free from drug dependency, and comply with all drug tests. The plan required her to participate and complete an anger management course, parenting education, substance abuse program, and random drug test.
The social worker filed a six-month status review report on February 21, 2002, in which it was noted that Mother had tested positive for amphetamines on December 17, 2001, and had not been attending the Perinatal Substance Abuse Treatment Program. Her counselor in this program informed the social worker that Mother had not attended since January 24, 2002, and would be dropped from the program as of February 21, 2002. Mothers visitation with Eric was sporadic: the visits often lasted less than an hour; and, her last visit had been more than a month before, on January 16, 2002.
In an addendum report filed April 25, 2002, the social worker stated that Mother had been discharged from the Perinatal program for "falsifying a doctors permission to return to groups" and "for playing games." The program counselor also reported that Mother participated in only 18 individual, case management, and group sessions and that if she had been participating regularly she would have attended 66 group sessions alone. Also, Mother had two positive drug tests since she had enrolled in the program and an additional positive test for her failure to appear on April 11, 2002. The social worker was especially concerned because Mother was five months pregnant at the time.
Mother appeared to be less than fully devoted to visiting Eric. In March and April 2002, she visited four times, the second visit lasting a scant 10 minutes. She did not attend seven scheduled visits during this time.
At the six-month review hearing (§ 366.21, subd. (e)) on May 6, 2002, services were ordered continued, and Mother was informed that she must attend a substance abuse program approved by the Department. Mother tested positive for drugs on this same date.
Mother enrolled in a drug program at High Desert Center on May 28, 2002. On July 23, 2002, a counselor reported that she was making excellent progress in all aspects of her treatment plan. Two days later, on July 25, 2002, Mother again tested positive for methamphetamines.
Mother gave birth to Adam on July 13, 2002. Adam failed to gain weight, and Mother admitted to the social worker and a nurse that she was diluting his formula, but claimed that she did this on doctors orders. Eventually, Adam was removed due to Mothers history of drug abuse, failing to protect her children, and her failure to adequately feed Adam. At Adams jurisdictional hearing on September 30, 2002, the court accepted the social workers report into evidence and made true findings as to these issues. Mother was given six months of reunification services for Adam as well as an additional six months for Eric.
On March 20, 2003, the social worker filed an 18-month status review report as to Eric and a six-month review report as to Adam. Mother was incarcerated from October 4 through November 15, 2002. She waited until December 5, 2002, to enroll in another substance abuse program. On the same date she tested positive for methamphetamines. The counselor reported that Mother participated only sporadically in the program, attending "three (3) days of groups and was not available for testing. When asked to test, [she] left before testing." Mother reported methamphetamine use on March 5, 2003.
The social worker asked Mother to drug patch seven times from September 2002, through March 2003. She completed only one of the tests on December 16, 2002, and the results were negative. All incomplete drug tests are considered positive, resulting in six positive drug tests.
Mother visited regularly with both her sons in November and December 2002, but missed four visits with Eric from January 31, 2003, to March 7, 2003, and missed visits with Adam three consecutive weeks in January and two more in February.
Petitioner failed to appear at the review hearing on June 18, 2003. The court noted that she had been in court on May 20, and ordered to appear on June 18. It also noted that the reason for the continuance was to allow petitioner to re-subpoena a witness, a counselor from her latest drug treatment program, Panorama Ranch. Petitioners attorney stated that she had not had any contact with her client since May 20, and that she had no evidence to present at the hearing. Counsel added that she understood from discussions with relatives that petitioner had not visited with either child since April. She indicated that the only information she would have presented would have been from the counselor at Panorama Ranch, but she learned that petitioner left there. "So based on the fact that mom has notice of todays date, its 2:00, oclock, I dont have a counselor because it would not be positive today, and I have no other witnesses, I would rest."
The court found that Mother had failed to participate regularly and make substantive progress in the court-ordered treatment plan and that return of the children to her would create a substantial risk of detriment to their safety, protection or physical and emotional well-being. With respect to both Eric and Adam, the court terminated reunification services and set selection and implementation hearings under section 366.26.
DISCUSSION
Petitioner suggests that she has completed her service plan but has simply failed to convince the social worker that it would be safe to return her children to her. Because the record lacks any expert evidence that either Eric or Adam would suffer serious physical or emotional damage if they were returned to her care, she asserts the Department has failed to carry its burden to prove a substantial risk of detriment would occur.
The record, however, does not support petitioners underlying premise that she has complied with all material aspects of her reunification plan. To the contrary, she was never successful in the drug treatment component of her plan. She tested positive for methamphetamine when she was pregnant with Adam, and subsequent efforts to remain clean were fruitless. At the eleventh hour, she enrolled in a residential "relapse prevention" program at Panorama Ranch, but had left that program at the time of the June 18, 2003, hearing.
In addition, at the time of the June hearing, her attorney reported that she had not visited either child since April.
Petitioners characterization of these feeble efforts as constituting compliance is the result of wishful thinking rather than a realistic evaluation of her performance.
The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (& sect;§ 366.21, subds. (e)-(f), 366.22, subd. (a).) Thus, petitioners failure to participate and make progress in treatment programs created a rebuttable presumption that return would be detrimental. (In re Heather B. (1992) 9 Cal.App.4th 535, 559-560.) This presumption remained unchallenged by petitioner and, thus, is sufficient to support the finding of substantial risk to the minors if they were returned to petitioner.
The petition is denied.
We concur: Gaut J., King J. --------------- Notes: All subsequent statutory references are to the Welfare and Institutions Code unless otherwise stated.