Opinion
F077625
08-28-2018
N.B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Laura Pedicini, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 517885)
OPINION
THE COURT ORIGINAL PROCEEDING; petition for extraordinary writ review. Ann Q. Ameral, Judge. Laura Pedicini, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Detjen, Acting P.J., Snauffer, J. and DeSantos, J.
-ooOoo-
Petitioner Nicole B. (mother), seeks an extraordinary writ from the juvenile court's orders terminating her reunification services as to her now one-year-old daughter, K.C., at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) and setting a section 366.26 hearing to implement a permanent plan of adoption. Mother contends the juvenile court erred in finding there was not a substantial probability K.C. could be returned to her custody by the 18-month review hearing. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In March 2017, the Stanislaus County Community Services Agency (agency) responded to a call that mother and newborn K.C. tested positive for opiates. Mother admitted a significant history of drug and alcohol abuse. K.C.'s biological father, Kenneth, also a drug abuser, was in county jail on probation violations. Though mother had no prior child welfare history, Kenneth had a history of physical abuse and neglect regarding children from other relationships.
K.C. had a traumatic birth, in part because she was delivered by vacuum extraction. She suffered a small stroke and seizures and was transferred to a children's hospital where she was treated for 18 days and discharged to foster care. K.C. continued to receive treatment over the course of these proceedings from developmental specialists.
The juvenile court detained K.C. and ordered mother to submit a hair follicle for drug testing, which she did. The results were positive for methamphetamine. The agency referred her for a substance abuse assessment but she did not schedule it.
In June 2017, the juvenile court ordered mother to complete mental health and substance abuse assessments, a parenting program, and to participate in random drug testing. The court set an interim review hearing in September and a six-month review hearing in December 2017.
Mother was very cooperative with the agency and nurturing and attentive to K.C. during visits. However, by September 2017, she had not initiated any of her services, including drug treatment. The juvenile court admonished her about her poor progress at the interim review hearing.
Mother's progress over the ensuing months remained poor. She continued to use methamphetamine several times a week and refused residential drug treatment even though she attempted but was noncompliant with outpatient treatment. Mother attributed her drug use to depression, which her social worker encouraged her to discuss with her substance abuse counselors. The agency recommended the juvenile court terminate mother's reunification services at the six-month review hearing, believing it unlikely she would reunify with K.C. if given more time.
Mother objected to the agency's recommendation and the juvenile court set a contested hearing in February 2018. Meanwhile, mother entered residential drug treatment at Nirvana Drug and Alcohol Institute (Nirvana) and received positive reports, including one in January 2018 stating, "[s]ince entering treatment, [she] made tremendous progress."
In February 2018, the juvenile court continued mother's reunification services but admonished her, she would be given "no further chances." The court set the 12-month review hearing for May 2018.
Meanwhile, mother completed Nirvana's residential treatment program, transitioned to its day treatment and entered its sober living facility. While in sober living, she was able to visit K.C. three times a week during the day and subsequently advanced to overnight visits one day a week. However, in early April, she returned to residential treatment for 30 days because she was not complying with day treatment. Approximately two weeks later, she was asked to leave Nirvana because of her poor attitude. Nirvana's director recommended she participate in outpatient treatment at First Step and reside at Redwoods sober living facility. Mother did not want to live at Redwoods and expose K.C. to communicable diseases that were reportedly prevalent there. She opted to enter another sober living facility at her own expense.
Despite mother's setbacks, the agency believed she was making progress and needed more time to complete her reunification services and demonstrate she could remain compliant outside of residential treatment. The agency recommended the juvenile court continue reunification services at the 12-month review hearing and grant mother a trial visit.
The juvenile court conducted a contested 12-month review hearing in May 2018. The agency made an offer of proof that the social worker if called would testify that mother missed her appointment on May 1 to begin treatment at First Step because she did not have transportation and received an unexcused absence. She subsequently missed four more appointments in May, which were excused. She began individual counseling on April 18 and attended a parent/child session on May 1. She regularly visited K.C. and was complying with the requirements of the sober living program. The court accepted the offer of proof.
Mother testified she was participating in treatment at First Step and living in a sober living facility. She had 189 days of sobriety. She completed group parenting and had two individual parenting sessions to complete. She began individual counseling on April 18, which she acknowledged was a five- to six-month delay. She put it off, first because she was in residential drug treatment and then because she was struggling with depression. She had since been prescribed psychotropic medication and believed it was helping her. She did not seek treatment for depression sooner because she thought it would resolve if she addressed her substance abuse problem. However, when she was still depressed after achieving sobriety, she decided to pursue mental health counseling.
County counsel recommended the juvenile court continue services to the 18-month review hearing in September 2018 based on the social worker's confidence K.C. could be returned to mother's custody by that time. Minor's counsel opposed it and the court declined to follow the recommendation.
The juvenile court found there was not a substantial probability K.C. could be returned to mother's care by the 18-month review hearing and terminated her services. The court stated:
"At the hearing [in February 2018], I was really, really clear with [mother]. I don't know how much clearer I could have been. I said that she was admonished regarding her progress, and she was advised that she would be given no further chances. [¶] [What] has happened [since then]? In this court's opinion, [mother] has continued to run her own program the way she wants it. ... [¶] ... [¶] [S]he continues to have excuses why she didn't do this, why she didn't do that. I am through with the excuses."
The juvenile court continued:
"Although the mother has regularly and consistently visited with [K.C.], she has not, in this Court's opinion, made substantive or significant progress in resolving the issues that caused [K.C.] to be removed from her care, nor has she demonstrated the capacity and ability to complete the objectives of the treatment plan, or to provide for [K.C.'s] safety and well-being, especially considering the very significant medical and special needs that [K.C.] has."
DISCUSSION
Mother argues the juvenile court's termination of reunification services is not supported by substantial evidence. She contends she was making progress on her case plan and demonstrated a likelihood of return within 18 months.
The dependency scheme contemplates that reunification will be accomplished within 12 months of the date the child entered foster care. (§ 361.5, subd. (a)(1).) A child is deemed to have entered foster care "on the earlier of the date of the jurisdictional hearing ... or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent ...." (§ 361.49.) As long as the parent was provided reasonable reunification services, the juvenile court can set a section 366.26 hearing at the 12-month review hearing. (§ 366.21, subd. (g)(4).) The court can, however, continue services if it finds there is a substantial probability that the child will be returned to parental custody within 18 months from the time the child was initially removed. (§ 366.21, subd. (g)(1).) In order to find a substantial probability of return, the juvenile court must find the parent regularly visited the child, made significant progress in resolving the problem prompting the child's removal, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection, and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) We will uphold the court's finding if substantial evidence supports it. (In re E.D. (2013) 217 Cal.App.4th 960, 966.)
K.C. entered foster care on the day she was taken into protective custody in March 2017. Consequently, by the 12-month review hearing in May 2018, mother had received 14 months of reunification services.
Here, in order to continue reunification services, the juvenile court had to find mother satisfied the three elements listed above and that K.C. could be safely returned to her custody by September 2018. Though the court found mother regularly and consistently visited K.C., it could not find she made significant progress in addressing her drug addiction or demonstrated the ability to provide for K.C.'s safety, protection and well-being. Instead, the court found she had a pattern of attempting to control the process and making excuses for not engaging in her court-ordered services. The record supports the court's conclusion.
Counsel acknowledged the 18-month review hearing if scheduled would be conducted in September 2018, 18 months from the date K.C. was taken into custody in March 2017. --------
Mother, nevertheless, contends the juvenile court's narrow focus on "missed appointments and a late start" prevented it from considering the impact her undiagnosed depression had on her ability to more fully engage in services. Despite that, she contends she made substantial progress in treating her addiction and regularly visited with K.C. In essence, mother asks this court to reweigh the evidence in favor of her position. However, we cannot reweigh the evidence. Nor do we determine whether substantial evidence would have supported a contrary judgment. Instead, we determine whether substantial evidence supports the judgment actually made. (Natalie D. v. State Dept. of Health Care Services (2013) 217 Cal.App.4th 1449, 1455.) Here, given mother's significant drug abuse history and pattern of noncompliance, there was no reason for the juvenile court to believe K.C. would be safely returned to her custody within four months.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.