Opinion
A150000
02-22-2017
P.L., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ1101795002)
This is a petition for an extraordinary writ, as authorized by California Rules of Court, rule 8.452. The petitioner is P.L., a mother who seeks to have set aside the order of respondent court setting a hearing pursuant to Welfare and Institutions Code section 366.26 at which her parental rights may be terminated with respect to her infant son. Her sole contention is that substantial evidence cannot be found to support the finding made by respondent court that was a substantial risk of detriment to the child's safety and well-being if he was restored to petitioner's custody.
"At the 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 . . . . In making its determination, the court shall review and consider the social worker's report and recommendations . . . , and 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 of services . . . ." (Welf. & Inst. Code, § 366.21, subd. (e).) In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, 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. (Id., subd. (g)(1); see Cal. Rules of Court, rule 5.710(b).) This finding will be upheld on review if it has the support of substantial evidence. (In re E.D. (2013) 217 Cal.App.4th 960, 966; James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.)
In conducting a review for substantial evidence, the function of this court is clear: "The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citations.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The points and authorities supporting the petition, and the response thereto filed by real party in interest Alameda County Social Services Agency (Agency), establish that both parties are thoroughly conversant with the record. Most of the salient events and details are not controverted, so there is no need to reiterate them all here. The following narrative is tailored to the single issue presented for decision, and viewed most favorably to the order being challenged. (In re I.J. (2013) 56 Cal.4th 766, 773.)
The minor was detained only days after his birth in 2011. The gist of the allegations of the petition filed by the Agency, and effectively admitted by petitioner, was that (1) she had "exhibited unstable and erratic behavior . . . after giving birth to the minor . . . which interfered with her ability to care for the minor" and (2) due to petitioner's "history of untreated mental health issues" and her "history of substance abuse," she had "abandoned [another] child," leading to her termination of parental rights with respect to that child in 2008 or 2009. In December 2011, the minor was declared a dependent, but allowed to remain in petitioner's custody, and the Agency was ordered to provide family maintenance services. The dependency was dismissed in November 2012.
The Agency filed a new petition in April 2015. Again, the basis was petitioner's "unresolved mental health issues" and abandoning the minor were alleged. The details were that petitioner was arrested for drug possession in Nevada, was "subsequently hospitalized at two psychiatric facilities" in that state, and that upon returning to Alameda County, petitioner "has been hospitalized at a psychiatric facility on multiple occasions." Again, petitioner in effect admitted the allegations, and in August of 2015 the minor was again declared a dependent, this time placed with the Agency, and reunification services ordered. Services were ordered discontinued in November 2016 at the same hearing the respondent court made the finding petitioner now challenges.
Petitioner understandably focuses upon the aspects of her testimony at that hearing which favor her position, such as testing clean on 79 of her 80 drug tests, and being "clean and sober for 17 months." If she was given custody of her son, she proposed that they will live with her cousin or with her brother. In addition to visitation, petitioner talked on the telephone with her son "at least four times a week."
But we are obliged to look to the evidence which supports the finding. That includes the case worker's testimony, refuting petitioner's testimony, that the Agency did provide referrals to various services, but petitioner delayed in taking advantage of the referrals, allowing most of an entire year to go by before contacting the referrals, starting to receive individual therapy, and commencing the medication portion of her case plan. The record also shows that petitioner did not maintain regular contact with the case worker. The case worker was unable to conclude that petitioner had stable housing, and her brother had not been approved as a suitable placement. Moreover, this would be significant for the minor, who, according to the stilted language of the case worker's status report, had a "current mental health diagnosis" for which he had been prescribed medication, and was receiving therapy. It would be even more important for a child who had twice been abandoned. Such thinking was behind the case worker's conclusion that placing the minor with foster parents continued to be "necessary."
In her status report of November 15, 2016—which was received in evidence as required by law (Welf. & Inst. Code, § 358, subd. (b))—the case worker summed up: "Detriment: For the past 18 months, the mother did not engage in individual counseling until 8/15/16 and attended 8 sessions as of 10/24/16. To date, the mother was seen only twice for medications on 7/1/16 and 8/10/16. As of this writing, the mother has no scheduled appointment with her psychiatric provider for medication monitoring. The mother's exact whereabouts are unknown; she has not obtained stable and appropriate housing for herself and [the minor]."
The petition is denied on its merits. The stay issued by this court on January 26, 2017 is dissolved. This decision is final as to this court forthwith. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.