Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. J1285647, James E. Herman, Judge
S.A., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, Joel F. Block, Deputy County Counsel, for Real Party in Interest.
COFFEE, J.
S.A. (mother) gave birth to a son, A.P., while incarcerated. Mother, in pro. per., seeks extraordinary writ review of an order of the juvenile court denying reunification services and setting the matter for a hearing terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, § 366.26.) Father is not a party to the writ proceeding. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
In February 2008, mother was driving while under the influence of alcohol and caused a car accident that resulted in the death of her passenger. She was convicted of vehicular manslaughter and sentenced to state prison. On October 5, while incarcerated, she gave birth to A.P. Mother released the infant to the maternal grandmother (grandmother). Child Welfare Services (CWS) removed A.P. from grandmother's home three days later and filed a juvenile dependency petition alleging mother's lack of provision for support and abuse of a sibling. (§ 300, subds. (g) & (j).) An amended petition added an allegation of failure to protect resulting from mother's chronic and severe substance abuse problem. (§ Id., subd. (b).)
CWS alleged that mother was incarcerated and had an expected release date of 2010. The petition indicated that mother had a long history with CWS, having been the subject of at least 20 referrals concerning A.P.'s half-siblings. Although mother had identified grandmother as an alternate caregiver, CWS was concerned about grandmother's suitability due to her own child welfare history. Father's whereabouts were unknown. The juvenile court ordered A.P. detained and set the matter for a contested jurisdiction/disposition hearing. He was placed in foster care.
Dependencies on Behalf of Half-Siblings
In 2003, CWS had filed a dependency petition on behalf of A.P.'s four half-siblings (M.E., R.P., A.P and K.P.) alleging mother's absence/incapacity and severe neglect. The half-siblings came to the attention of CWS when their paternal aunt took them to the hospital because they were extremely ill. One was diagnosed with failure to thrive and had a ruptured eardrum. Another child had pneumonia and a history of asthma. Mother did not visit the children until 24 hours after they were hospitalized. She admitted to drug use and ongoing domestic violence with the father, and admitted to being involved with a known gang member who had contact with the children. Mother received 18 months of services which resulted in reunification, and the petition was dismissed in 2005.
A second petition was filed in March 2007, following a car accident in which one of the half-siblings, age 12, had been driving and lost control. All of the children were injured. One of the minors severed his finger and another received lacerations to her scalp. Mother's intoxicated boyfriend was riding in the car. Law enforcement visited mother's house and found her asleep. Spoiled food, trash, glass, garbage and beer cans were littered throughout the house and there was no working toilet. The children were detained. It was reported that mother had a criminal history of alcohol and drug use.
In early February 2008, mother was nearing completion of her case plan. She had been released from a clean and sober living home in order to find a residence for herself and her children. Mother was in compliance with Proposition 36 probation and had received an award of Section 8 housing assistance. Two days after her release, she was arrested for vehicular manslaughter and incarcerated. Mother's parental rights to the half-siblings were terminated several months later.
Contested Jurisdiction/Disposition Hearing
A jurisdiction/disposition report concerning A.P. was issued by CWS on November 17, 2008. It recommended that mother not be offered family reunification services because her parental rights had been terminated as to the half-siblings. (§ 361.5, subd. (b)(10) & (11).) CWS believed visitation would not be in A.P.'s best interest, due to his age and the travel distance from Santa Barbara to Chowchilla state prison.
The allegation concerning mother's chronic drug and alcohol abuse was included in the amended petition. (Welf. & Inst. § 361.5, subd. (b)(13).)
CWS indicated that mother's drug use had twice resulted in the half-siblings entering foster care. Mother had demonstrated that her needs were superior to their welfare. She had continually endangered the minors through her drug use, failure to provide for and supervise them, and by exposing them to dangerous individuals.
On February 10, 2009, the juvenile court conducted a contested jurisdiction/disposition hearing. Mother testified that she had been under the influence of alcohol when she rolled the car and her passenger was killed. Social worker Laurie Haro testified that mother has a history of an extensive, abusive and chronic use of drugs and alcohol. Haro indicated that mother had participated in seven programs since 2003. It did not prevent her from using alcohol within two days of completing the most recent program in February 2008.
Haro testified that reunification was not in A.P.'s best interest. She emphasized that the child is an infant and has no bond with mother, who has been incarcerated since his birth. There has been no visitation and mother is unable to remain sober outside a structured living environment. A.P.'s half-siblings had been abused and neglected by mother since 2003.
Haro indicated both in an addendum report and in her testimony that placement with the maternal grandmother was not appropriate. When mother released the minor to grandmother in October 2008, grandmother resided with her nephew who has several convictions for violent felonies and drug use. Also in the home was the children's aunt. The half-siblings had previously disclosed to CWS that their aunt would "slap, hit, bite and punch" them at every visit. Grandmother disagreed with this characterization and testified that the aunt "just disciplined" them.
Due to these circumstances, CWS denied grandmother's initial request for placement in October 2008. Grandmother then moved into the home of her former mother-in-law and reapplied for placement in December 2008. CWS investigated the possible placement and learned that grandmother and her current husband are not employed. They receive unemployment benefits and food stamps. Although grandmother stated they were "living off their savings," she was unable to provide documentation to CWS that she had any type of savings account.
Haro testified that grandmother was aware of mother's neglect of the half-siblings, yet had done nothing. She had frequent contact with mother and the half-siblings from 2005 and 2007 (between the two dependencies) when mother was using drugs and the children were living in a dirty home and not being fed. Yet, grandmother never came forward to report these conditions to CWS. Moreover, A.P. has no relationship with grandmother, having resided with her for only three days before his removal.
The juvenile court sustained the amended petition (§ 300, subds. (b), (g) & (j)), and found that mother is a person described by section 361.5, subdivision (b)(10), (11), and (13). It found by clear and convincing evidence that reunification would not be in A.P.'s best interest and ordered services bypassed. The court based its ruling on mother's substance abuse problem; the termination of parental rights as to the three half-siblings; mother's criminal activity; and her inability to provide a stable home.
The juvenile court was referring to three of the half-siblings (R.P., A.P. and K.P.) who share the same father. Mother's parental rights to those three children were terminated on August 14, 2008.
The juvenile court denied maternal grandmother's request for placement. It indicated that grandmother allowed the half-siblings' aunt to physically mistreat them. Grandmother was aware of the unsafe and unsanitary conditions in mother's home, yet did nothing to protect the children. After A.P.'s birth, she took him into her home, where she resided with a convicted felon. The court determined that grandmother had no financial ability to support the child and set the matter for a section 366.26 hearing.
Writ Petition
Mother filed a petition for extraordinary writ review of the juvenile court's order setting a section 366.26 hearing. She stated in her petition that the juvenile court did not "have the right to obtain jurisdiction" of A.P. because CWS was not entitled to remove him from grandmother's care. Mother argues that A.P. was born without drugs in his system and she made all the necessary arrangements for grandmother to obtain custody, including providing the necessary legal documents. Mother requests that we vacate the order setting the 366.26 hearing; order reunification and visitation; and allow grandmother to become A.P.'s legal guardian. She contends there exists a "change of circumstance" justifying placement with grandmother.
DISCUSSION
Respondent claims that mother's writ is procedurally defective and must be denied because it does not include a summary of significant facts, legal argument or citation to authority. We nonetheless consider her petition on the merits.
We review an order denying reunification services for substantial evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) When a child has been removed from the physical custody of a parent, the juvenile court may order reunification services, unless if finds, by clear and convincing evidence, that a statutory exception applies. (§ 361.5, subd. (b).) If an exception exists, reunification shall only be ordered if the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (Id., subd. (c); D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.)
The enumerated exceptions to reunification include circumstances in which the court has terminated reunification services for a sibling or half-sibling and the parent has not made a reasonable effort to treat the problems that led to removal (§ 361.5, subd. (b)(10)); parental rights as to a sibling or half-sibling have been severed (id., subd. (b)(11)); or a parent has a history of extensive, abusive and chronic use of drugs or alcohol and has failed treatment on at least two prior occasions (id., subd. (b)(13)).
Before A.P.'s birth in 2008, reunification services and parental rights had been terminated as to his four half-siblings. They were first detained in 2003, after being hospitalized for medical conditions caused by mother's incapacity and severe neglect. In 2007, the children were injured in a car accident, in which one of the minors was driving. Mother's intoxicated boyfriend was riding in the car, and mother was found asleep in her house which was littered with garbage and other debris. Although mother entered a treatment program, two days after her release she became intoxicated and was arrested for vehicular manslaughter. She did not make a reasonable effort to treat the problems that led to removal.
The social worker, Haro, testified that mother had undergone substance abuse treatment programs during both dependencies. During the second dependency she was enrolled in several different programs, but did not complete them because was arrested and incarcerated for being under the influence. As is evident from Haro's testimony, mother has failed at her numerous attempts at treatment.
Mother also argues on appeal that there was a "change of circumstance" permitting A.P.'s placement with grandmother. However, mother has failed to identify how grandmother's circumstances have changed. Although grandmother has moved from the house she shared with a convicted felon, she is still unable to recognize abusive behavior and has no means to support A.P. The only change in mother's circumstances is that she is now incarcerated. Her abuse of alcohol has remained unchanged and she cannot remain sober outside a structured living environment.
The juvenile court found by clear and convincing evidence that sections 361.5, subdivision (b)(10), (11) and (13) were applicable. Substantial evidence supports the juvenile court's findings that providing reunification or visitation with mother or placing A.P. with grandmother would not be in his best interest.
The petition is denied.
We concur: GILBERT, P.J., PERREN, J.