Opinion
F063329
12-29-2011
SHARI S., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
Shari S., in pro. per., for Petitioner. No appearance for Respondent. Theresa A. Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. JD124684-00)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Louie L. Vega, Judge.
Shari S., in pro. per., for Petitioner.
No appearance for Respondent.
Theresa A. Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Real Party in Interest.
Shari, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her six-year-old daughter Heidi. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
In July 2010, the Kern County Department of Human Services (department) removed then four-year-old Heidi from the custody of her father, Ronald, because he was using drugs and not providing her food and appropriate shelter. At the time, Shari was incarcerated. She said she was incarcerated in early June 2010. Prior to that, she was living with Ronald and Heidi in a garage with no windows or doors. She admitted it was not suitable but said the family had nowhere else to go. She said she used methamphetamine sporadically since 1999 and last used the drug in late May 2010.
Ronald did not file a writ petition.
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The juvenile court exercised its dependency jurisdiction and ordered reunification services for Shari and Ronald. Shari's services plan required her to participate in counseling for child neglect and substance abuse and submit to random drug testing.
The juvenile court provided Shari reunification services over the ensuing year and she started off well. In August 2010, she began substance abuse counseling, which she was scheduled to complete in February 2011 and, in January 2011, she completed parenting and child neglect counseling. However, she also tested positive for methamphetamine in mid-January 2011. She subsequently, tested negative once, failed to test in February and March, and in April 2011, was arrested for possession of a controlled substance. She pled guilty to the charge, was convicted, sentenced and released in July 2011. While incarcerated, Shari participated in a substance abuse program, however, the department did not credit it toward satisfying her substance abuse requirement because it was an educational program not a counseling program.
In August 2011, Shari provided a urine sample for drug testing which was not considered a legitimate sample. She subsequently tested negative for drugs in late August and early September 2011.
In its report for the 12-month review hearing scheduled for September 2011, the department recommended the juvenile court terminate reunification services for Shari and Ronald and set a section 366.26 hearing.
In September 2011, Shari testified at the contested 12-month review hearing that she relapsed in January 2011 because her son was dying of cancer. She said his condition deteriorated in February and she lived with him at a skilled nursing facility for two months and then he died in early April 2011. During that time, she missed some drug tests. Three days after his death, Shari said she was arrested and unable to attend his funeral.
Shari further testified that she successfully completed drug treatment in 1999 or 2000 and during her last incarceration. She said she relocated to Bakersfield and enrolled in a substance abuse program there. She also continued to drug test and, to her knowledge, the results were negative.
During the argument phase, Shari's attorney asked the juvenile court to continue reunification services to the 18-month review hearing in January 2012.
Following argument, the juvenile court terminated Shari's reunification services, finding there was not a substantial probability Heidi could be returned to her custody by the 18-month review hearing. Consequently, the juvenile court set a section 366.26 hearing. This petition ensued.
DISCUSSION
Shari contends the juvenile court erred in finding there was not a substantial probability Heidi could be returned to her custody by the 18-month review hearing. Therefore, she further contends, the juvenile court also erred in terminating reunification services. We disagree.
The juvenile court has discretion to extend services beyond 12 months if it finds there is a substantial probability that the child will be returned to parental custody and safely maintained in the home within the extended period of time. (§§ 361.5, subd. (a)(1); 366.21, subd. (g)(1).) In order to find a substantial probability of return, the juvenile court must first find that the parent made significant progress in resolving the problem necessitating the child's removal and that the parent demonstrated the capacity to meet the objectives of the case plan and provide a safe home for the child. (§ 366.21, subd. (g)(1)(B) & (C).)
When the juvenile court's order terminating reunification services is challenged on appeal, our role is to determine whether substantial evidence supports the juvenile court's order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) In doing so, we do not reweigh the evidence or draw our own conclusions from it. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) Rather, we merely determine if there are sufficient facts to support the findings that the juvenile court made. (Ibid.) Stated another way, the question on appeal is not whether the juvenile court could have found differently, but whether substantial evidence supports the finding that the juvenile court made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) On this record, we conclude that it does.
Shari has a long history of drug use for which she has had ample time and opportunity to treat. Though she demonstrated the ability to complete drug treatment, she did not demonstrate an ability to maintain abstinence. Unfortunately, it resulted in Heidi's neglect. On this evidence, the juvenile court could reasonably conclude that Shari would not be able to safely assume custody of Heidi in the four months remaining before the 18-month review hearing. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.