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S.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 30, 2009
No. F057041 (Cal. Ct. App. Apr. 30, 2009)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Mary Dolas, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21). Super. Ct. No. 07CEJ300031-1

S.V., in pro. per., for Petitioner.

No appearance for Respondent.

Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.


OPINION

THE COURT

Before Wiseman, A.P.J., Cornell, J., Kane, J.

Petitioner (mother) in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders issued at a contested dispositional hearing on a supplemental petition (Welf. & Inst. Code, § 387) terminating her reunification services and setting a section 366.26 hearing as to her son D. We will deny the petition.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

In February 2007, petitioner was waiting at a bus stop with then 10-month-old D. when she left D. unattended in his stroller to fight with a woman at the bus stop. At the time, petitioner, who has a history of drug and alcohol abuse, was under the influence of alcohol. She was involuntarily committed because she was acting strangely and D. was taken into protective custody by the department of social services (department) and placed in foster care.

The juvenile court adjudged D. a dependent of the court pursuant to section 300 and ordered him removed from petitioner and his father D.A. The court ordered reunification services for both parents. Services included parenting classes, mental health and substance abuse evaluations, and random drug and alcohol testing.

D.A. did not file a writ petition.

During her substance abuse evaluation, petitioner disclosed using alcohol, her substance of choice, for one year. She also reported arrests for driving under the influence and public intoxication. In addition, she disclosed using methamphetamine for two years and marijuana for three but did not report participating in drug and/or alcohol treatment. The evaluator referred petitioner for intensive outpatient substance abuse treatment. Petitioner also completed a mental health assessment but was not considered in need of mental health treatment.

By the six-month review of services in August 2007, petitioner had completed a parenting course, was testing negative for drugs and alcohol, and was in the aftercare phase of outpatient substance abuse treatment. She also regularly participated in weekly supervised visitation with D. to whom she was very responsive and attentive. Though the department did not believe D. could be safely returned to petitioner and D.A.’s custody, it considered their progress significant and recommended the court continue reunification efforts and order unsupervised visitation.

In September 2007, at the six-month review hearing, the juvenile court continued reunification services until the 12-month review hearing which it set for February 2008. The court also ordered unsupervised visitation.

In November 2007, while in the aftercare phase of her treatment, petitioner tested positive for methamphetamine and D.A. tested positive for phencyclidine (PCP). They reentered substance abuse treatment and, in January 2008, petitioner gave birth to D.A.’s daughter S.

By the 12-month review of services in February 2008, petitioner was expected to begin aftercare within two weeks and to complete substance abuse treatment by the next court hearing. Otherwise, she had completed her services and she and D.A. had a home and were employed.

In its 12-month status review, the department reported petitioner and D.A. made significant progress but had not ameliorated the problems that necessitated D.’s removal. However, the department anticipated the parents would complete all court-ordered services by the 18-month review hearing. Consequently, the department recommended the court continue reunification efforts and grant the department discretion to arrange liberal visitation.

In February 2008, the juvenile court conducted the 12-month review hearing and continued reunification services to the 18-month review which it set for July 2008. The court also granted the department discretion to arrange liberal visitation.

In May 2008, the department met to address concerns D.A. was still drinking alcohol. As a condition of continuing reunification efforts, the department required him to move out of the home for 30 days. He vacated the home the following month.

In July 2008, at the 18-month review hearing, the juvenile court terminated petitioner’s reunification services and placed D. with her under family maintenance. The court continued the matter to September 2008 and set a combined hearing to review petitioner’s progress under family maintenance and adjudicate the department’s recommendation to terminate D.A.’s reunification services.

In August 2008, a police officer was dispatched to a bus stop after an anonymous caller stated petitioner was drinking alcohol and asked the caller if she would take her children because she could no longer care for them. Petitioner was drinking malt liquor beer and, according to the police officer, was clearly intoxicated. She registered a reading of 0.11 on the breathalyzer. In addition, she was acting strangely. At one point, she picked then six-month old S. up and yelled, “Here take them if that is what you want.” Petitioner was arrested and charged with felony child endangerment, public intoxication and resisting arrest.

The department took the children into protective custody and filed an original petition (§ 300) as to S., alleging petitioner and D.A.’s substance abuse and failure to comply with their court-ordered services placed S. at a substantial risk of harm. The department also filed a supplemental petition (§ 387) as to D. alleging, family maintenance had not been effective in protecting D. because, despite 18 months of reunification services, petitioner relapsed and was intoxicated while caring for D. The court set a combined detention hearing for both petitions.

The juvenile court ordered the children detained and set a contested 18-month review hearing as to D.A. The court also set a jurisdictional hearing and ordered the department to continue providing petitioner and D.A reunification services. The court vacated the September 2008 family maintenance review hearing.

In August 2008, petitioner completed a second substance abuse assessment. She stated she was sober for 14 months and relapsed the day she was arrested. She also reported completing 280 days of outpatient treatment three years prior. She was referred for residential substance abuse treatment.

In September 2008, the juvenile court terminated D.A.’s reunification services as to D. In October 2008, after petitioner’s release from jail, she entered substance abuse treatment. While in jail, she attended Alcoholics Anonymous meetings and a drug and alcohol education class.

In November 2008, the juvenile court sustained the original petition as to S. and the supplemental petition as to D. after petitioner and D.A. waived their trial rights. The court set the dispositional hearing on both petitions for December 2008. In its dispositional report, the department recommended the court deny petitioner and D.A. reunification services as to both children; petitioner under section 361.5, subdivision (b)(13) and D.A. under subdivision (b)(10) and (13) of section 361.5.

In February 2009, the juvenile court conducted the combined contested dispositional hearing. Petitioner’s position at the hearing was that reunification was in the best interest of her children. To that end, she presented testimony from her social worker who said the children appeared bonded to petitioner and D.A. The social worker also testified petitioner completed a 90-day inpatient drug treatment program and subsequently tested negative for alcohol or drugs.

Petitioner’s therapist testified that petitioner was raised in an alcoholic family system in which she learned to “numb out” her feelings. As a result, she did not deal directly with grief caused by the death of her parents. Her unresolved grief triggered her relapse. The therapist stated she planned to continue working with petitioner and believed petitioner stood a good chance of maintaining sobriety if she remained separated from D.A. and continued to rely on her support system.

Petitioner testified she was scheduled to begin aftercare, was attending Narcotics Anonymous/Alcoholics Anonymous meetings and had a sponsor. She also testified she was living with D.A. but would separate from him if it meant regaining custody of her children.

Following testimony and argument, the juvenile court adjudged both children dependents of the court. The court terminated petitioner’s reunification services as to D. and set a section 366.26 hearing to implement a permanent plan. As to S., the court found petitioner and D.A. made significant efforts and ordered the department to provide them reunification services. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in terminating her reunification services as to D. Specifically, she contends the juvenile court’s order granting her reunification services as to S. implies she has the potential to regain custody of her children. She also contends it is in D.’s best interest to be reunited with her and S. We find no merit to her argument.

“The best interest of the child is the fundamental goal of the juvenile dependency system, underlying the three primary goals of child safety, family preservation, and timely permanency and stability. [Citation.]” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) To that end, section 361.5, subdivision (a) requires the juvenile court to provide reunification services to a parent whose child has been removed pursuant to any subdivision of section 300. This mandate reflects the general rule favoring reunification and implies, as petitioner points out, that reunification is possible. However, the Legislature imposed an 18-month limitation on reunification services. (§ 361.5, subd. (a)(2).)

In this case, D. was removed from petitioner’s custody in February 2007. Petitioner was subsequently provided 24 months of family reunification and family maintenance services combined. As such, she was provided in excess of the 18 months of services intended by statute. The fact that the juvenile court simultaneously granted petitioner reunification services for S. and terminated services for D. implies nothing with respect to petitioner’s ability to reunify with D. Rather, the children were differently situated at the time of the hearing. Petitioner had 24 months to reunify with D. and failed. In contrast, petitioner had not previously been granted the opportunity to reunify with S. and the juvenile court found reason to give her that opportunity.

Having provided petitioner 24 months of reunification services, the juvenile court had no choice but to terminate reunification services unless it found continuing services would serve D.’s best interest. (§§ 361.5, subd. (a)(3) & 352, subd. (a); Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) In considering a child’s interests, the court must give substantial weight to the child’s need for prompt resolution of his or her case, the need to provide the child with a stable environment and the damage that prolonged temporary placements might cause the child. (§ 352, subd. (a).)

We review the juvenile court’s decision to discontinue reunification services for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) Under the abuse of discretion standard, we will not overturn a juvenile court’s decision unless there is a clear showing the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

On these facts, we conclude the juvenile court did not abuse its discretion in refusing to continue petitioner’s reunification services as to D. D. was removed from petitioner’s custody at the age of 10 months. At just over two years of age, he was returned to petitioner’s custody after 18 months of family reunification services. Within several weeks of his return, petitioner was intoxicated and trying to give him away to a stranger. The circumstances which prompted D.’s removal in August 2008 are a virtual replay of the circumstances which necessitated his removal in February 2007. Given petitioner’s history of alcohol abuse, relapse and child endangerment, the juvenile court’s decision not to continue reunification efforts as to D. was not error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


Summaries of

S.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 30, 2009
No. F057041 (Cal. Ct. App. Apr. 30, 2009)
Case details for

S.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

Case Details

Full title:S.V., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:California Court of Appeals, Fifth District

Date published: Apr 30, 2009

Citations

No. F057041 (Cal. Ct. App. Apr. 30, 2009)

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