Opinion
D042734.
10-23-2003
TAMRA A., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Six-year-old Dustin A. and one-year-old Amber A. were declared dependents because they were exposed to domestic violence between their parents, Tamra and Jackie A. An additional reason for Dustins dependency was his parents failure to consistently provide him with medication and care for his medical disability. After 12 months of reunification services, the juvenile court found the parents had been offered reasonable services and had not made substantive progress with their case plans. The court further found there was not a substantial probability that Dustin and Amber could be returned to their custody within the next six months. The court terminated services and set a permanency planning hearing.
Tamra seeks writ review (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B), claiming the court should have continued the 12-month review hearing because her extensive medical problems made it difficult for her to comply with the reunification plan. We issued an order to show cause, the San Diego County Health and Human Services Agency (HHSA) responded, and the parties waived oral argument. We review the petition on the merits and deny it.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2002 Tamra and Jackie signed a voluntary services contract with HHSA after it was reported that Dustin, who has severe emotional and behavioral problems, was not getting his medications. Dustin had a history of killing family pets and defecating on neighbors property. He had been prescribed Clonidine, Depakote, Ritalin and Thorazine. Both parents agreed to attend domestic violence and parenting classes, and Tamra agreed to attend individual counseling.
During the next four months, neither parent participated in a domestic violence treatment program, and incidents of domestic violence increased in frequency and intensity. HHSA also received reports that Tamra and Jackie neglected the children and were inconsistent in administering Dustins medications. On June 7 the children were taken into protective custody after two domestic violence incidents occurred in a one-week period. In one incident, Jackie choked Tamra and, in the other, he bruised her shoulders and legs.
On June 12 HHSA filed petitions pursuant to section 300, subdivision (b) alleging the children were at risk because of their exposure to domestic violence. Dustins petition also contained a count alleging his parents had failed to provide him with medication and treatment for his disability. The parents submitted on the petitions, and the court sustained them.
Tamras case plan included a domestic violence program, a psychiatric evaluation, general counseling, parenting education, enrollment in the Substance Abuse Recovery Management System (SARMS), and a 12-step program. At the end of June, Tamra had voluntarily enrolled in SARMS, but since then had refused all drug treatment and had missed drug tests. Arguing that her drug use was in her past and that she had not used drugs since 1992, Tamra challenged the need for substance abuse treatment. The social worker disagreed, noting that at one point Tamra "had a $1,000/day habit of cocaine and heroin `on top of methadone. " Because of various health problems, in 2002 Tamra was taking Prozac, Tagamet, Vicodin and a muscle relaxant.
On August 1 after a contested hearing, the court terminated Tamra from SARMS and ordered her to attend Dependency Drug Court. After refusing to drug test, Tamra was terminated from Drug Court and was later ordered to enroll in SARMS.
At the six-month review hearing, HHSA reported Tamra had not complied with her case plan. Tamra had not attended any domestic violence program sessions or 12-step program meetings. On December 19 Tamra attended her first individual counseling session. December 19 was also the only day Tamra went to SARMS. The intake SARMS employee believed Tamra was under the influence at the time and asked her to take a drug test. Tamra refused to test.
Tamra told the social worker she had been admitted to a hospital for liver problems, but she failed to provide requested documentation to the social worker. According to a psychological report, Tamra reported having advanced liver disease, problems with her spleen and a blood disorder. Tamra told the social worker she might have leukemia.
Tamra participated in weekly joint therapy sessions with Dustin, but she often acted inappropriately during the sessions.
On January 22, 2003, the court found that Tamra had not made substantive progress on her case plan and ordered HHSA to continue services to the parents. Tamras compliance with her case plan did not improve appreciatively during the ensuing period. At a SARMS drug test, Tamra submitted a false urine sample and then refused to supply a second sample.
Tamra attended the domestic violence program a total of three times. Tamra continued to have contact with Jackie even though there was a restraining order against him.
On March 18 Tamra submitted a waiver of reunification services to the court, but changed her mind two days later. The court ordered Tamra to undergo a psychiatric evaluation. The court also ordered HHSA to contact Tamras medical doctors and terminated Tamra from SARMS pending the receipt of information about her medical treatment.
Tamra continued her individual therapy, but her attendance was irregular. The therapist reported that Tamra was cooperative and that she wanted to explore issues to gain control of her life and reunify with her children. The therapist also reported that Tamra was in need of medical assistance, noting that Tamra had a "level of denial and defeat that inhibit[s] her from dealing realistically with her health."
On April 10 Tamra was admitted to a hospital for gastrointestinal bleeding resulting from anemia, a urinary tract infection, hypothyroidism, chronic back pain and pancytopenia. Tamra refused an endoscopy and did not follow up with any doctor appointments after she was discharged. On May 28 the social worker took Tamra, who was feeling ill, to a healthcare clinic, where she was diagnosed with hepatitis C, cirrhosis, and portal hypertension. The following day the social worker took Tamra back to the clinic for blood tests, but she refused treatment. Tamra was admitted to a hospital later that day.
Tamra had consistent visitation with Amber, who was transported to Tamras residence for supervised visitation. However, Tamras visitation with Dustin was irregular. Dustins therapist said Dustin was troubled by the inconsistency of his parents visitation.
At the August 14 contested 12-month hearing, the court found that Tamra had not made substantive progress on her reunification plan and there was not a substantial probability that Dustin and Amber would be returned to her custody within the next six months. The court terminated reunification services and set a section 366.26 hearing.
DISCUSSION
Tamra contends that she made "Herculean efforts to comply with most components" of her case plan despite having a debilitating medical condition, and that she should have been given more time to get physically well, to enable her to fully address reunification with her children. We disagree.
When a dependent child is not returned to parental custody at the 12-month review hearing, the court must set a permanency hearing, order long-term foster care or continue reunification services to the 18-month date. (§ 366.21, subd. (g).) "The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . ." (§ 366.21, subd. (g)(1), italics added.)
In order to find a substantial probability of return, the court is required to find the parent has consistently visited the child (§ 366.21, subd. (g)(1)(A)); the parent has made substantial progress in resolving the problems that led to removing the child (§ 366.21, subd. (g)(1)(B)); and "[t]he parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(C).)
On appeal, we must defer to the factual determinations of the juvenile court. It is not our function to redetermine the facts. As long as the courts decision was supported by substantial evidence, we must affirm. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198-200.)
Substantial evidence supports the trial courts finding there was no substantial probability the children would be returned to Tamra custodys within the next six months. First, there was sufficient evidence that Tamra did not maintain consistent visitation with both children. (§ 366.21, subd. (g)(1)(A).) Tamras visits with Dustin were irregular.
Second, the court had more than ample cause to question Tamras progress toward eliminating the conditions that led to the dependency — namely domestic violence and the protective issues surrounding Dustins medication and treatment. (§ 366.21, subd. (g)(1)(B).) Tamra made little, if any, progress with the domestic violence component of her case plan. She went to three sessions of the domestic violence treatment program and then stopped attending. Also, Tamra was in contact with Jackie even though a restraining order against him was in place. Tamra also failed to show progress in being able to care for Dustin and his special needs, including consistent administration of his medications. Tamras case plan included substance abuse treatment because of her history of drug abuse. Yet, throughout this dependency, Tamra consistently refused to participate in substance abuse programs and to undergo random drug testing at SARMS. As to her use of Vicodin and other medicines which she obtained on the street, Tamra referred to herself as a "pill popper," but insisted she did not abuse drugs. Moreover, Tamras inability to take care of her own medical needs and to comply with doctors instructions did not bode well for her capacity to safely provide for Dustin.
Finally, there was abundant evidence that Tamra lacked the willingness, determination and capacity to meet the objectives of the reunification plan. (§ 366.21, subd. (g)(1)(C).) Tamras complete denial about her substance abuse problem demonstrated she was unable to complete her case plan or to safely parent her children.
In arguing that the court should have continued the dependency, Tamra ignores the mandate of section 366.21 that at the 12-month review stage the case can be continued only if there is a substantial probability of return. Tamras reliance on section 352 and cases such as In re Elizabeth R. (1995) 35 Cal.App.4th 1774 is misplaced. In that case, the court exercised its discretion under section 352 to continue the dependency beyond the 18-month review hearing. Procedures for 18-month hearings are governed by section 366.22. Unlike section 366.21, which has a built-in continuance provision for 12-month review hearings (ibid., subd. (g)(1)), section 366.22, has no such provision. Moreover, cases such as In re Elizabeth R., supra, 35 Cal.App.4th 1774, where there were exceptional circumstances justifying an extension of services beyond the statutory limit, are distinguishable on the facts. In In re Elizabeth R., supra, the mother was hospitalized for more than two thirds of the reunification period. (Id. at p. 1777.) Here, Tamra was hospitalized for short periods. Finally, we note Tamra did not seek a continuance under section 352 at the trial court level.
DISPOSITION
The petition is denied.
WE CONCUR: HUFFMAN, Acting P. J. and OROURKE, J. --------------- Notes: Section 352, subdivision (a) reads: "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements."