Opinion
NOT TO BE PUBLISHED
Original Proceedings; petition for extraordinary writ review, Super. Ct. No. JD121679, Peter A. Warmerdam, Referee.
David G. Duket, for Petitioner.
No appearance for Respondent.
Theresa A. Goldner, County Counsel, and Mark L. Nations, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court removing her daughter, M., from her custody, denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We conclude the juvenile court erred in ordering M. removed from petitioner’s custody and will grant the petition on that basis.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In July 2009, the Kern County Department of Human Services (department) received information that petitioner gave birth to a baby girl and had four other daughters (daughters) who were in permanent placement. An emergency response social worker interviewed petitioner and M.’s father, Charles, at the hospital the day M. was born. Petitioner admitted using methamphetamine since she was 10 years old but said she stopped in September 2006, the day she was arrested and her daughters were removed from her custody. She said she maintained her sobriety by attending Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings and having sober friends. Petitioner also disclosed that Charles had a history of drug abuse but was no longer using drugs.
Petitioner also told the social worker M. was her seventh child. Petitioner had an older daughter C., a son who was placed for adoption when petitioner was in high school and the daughters who were removed in 2006. Charles is the father of one of those daughters, K. Petitioner said she received reunification services from September 2006 through May 2008, including a parenting class and substance abuse treatment, but she missed several drug tests just before the 18-month review hearing. As a result, her services were terminated and the daughters were placed with their maternal grandfather under a plan of legal guardianship. The social worker asked petitioner why she missed the drug tests. Petitioner first explained it was because she was homeless. Several days later, she told the social worker she missed two of the drug tests during Christmas time and was depressed. She was not sure why she missed the others.
During the interview, petitioner also disclosed that in 1999, she was diagnosed with generalized depression with anxiety for which she was prescribed medication. However, she said she was no longer taking medication. Petitioner stated she did not receive regular prenatal care for M. because she did not have the money and because, during her pregnancy, she and Charles kept moving back and forth between California and Arkansas, where Charles had relatives.
Petitioner also stated she and Charles had been in a committed relationship for three years but he would move out of their home if necessary. She said she was willing to repeat any services and provided the social worker a urine sample for drug testing.
The social worker also interviewed Charles. He said he had not used drugs for two years and drug tested as a condition of parole. He stated he would be willing to participate In reunification services and drug test. The following day, Charles gave the social worker a tour of their home, which she found clean, organized and prepared to receive the baby.
The social worker also researched the family’s child welfare history and discovered two substantiated referrals for child neglect. The first involved allegations in 1996 that petitioner used drugs during pregnancy and was not bonding with the baby. The baby was placed in protective custody, and the family participated in family maintenance services until November 1998. The case was subsequently dismissed.
The second substantiated referral, received in September 2006, alleged petitioner was using drugs. She slept during the day while caring for her then four-year-old daughter and was either asleep or sick when the three school-aged daughters returned home. In addition, she was not providing them adequate medical and dental care. Consequently, the children were taken into protective custody and petitioner was arrested for possession of a controlled substance, being under the influence of a controlled substance, and child endangerment. The department filed a dependency petition, which the juvenile court sustained. Petitioner and Charles received 18 months of parenting, child neglect and substance abuse counseling as well as random drug testing. Petitioner completed the counseling services but failed to drug test numerous times and was homeless. Charles did not participate in services at all. Consequently, in May 2008, the juvenile court terminated their reunification services and, in September 2008, established a legal guardianship for the children.
The department also discovered in its background check that petitioner had 12 misdemeanor convictions from 1988, when she was 18 years old, to 2006. Seven of those occurred between 1988 and 1996. The majority were for theft crimes and vehicular violations. In 1997, petitioner was convicted for being under the influence of a controlled substance, and in August 2006, she was convicted for selling liquor to a minor. In October 2006, petitioner was convicted of willful cruelty to a child and charges for possession of controlled substance paraphernalia and being under the influence of a controlled substance were dismissed.
Charles also had a criminal history of misdemeanor convictions although not as extensive as petitioner’s. According to the department’s background check, his last conviction was in 1996 for possession of a controlled substance for sale.
Following the investigation, the social worker told petitioner the department would be filing a dependency petition on M.’s behalf because petitioner missed drug tests and could not explain why, had a history of unstable housing, and lived with Charles who had a history of drug use. The petition alleged petitioner and Charles’s history of drug use, failure to drug test in the prior dependency case, and failure to reunify with the daughters brought M. within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).
In July 2009, at the detention hearing, petitioner denied the allegations and her attorney called the emergency response social worker to the stand. She testified neither petitioner nor M. tested positive for drugs and her only concern related to the prior missed drug tests. Petitioner’s attorney argued there was no evidence of current drug use and asked the court to release M. to petitioner’s custody. The juvenile court declined to do so, stating the parents’ failure to drug test and the children’s placement in legal guardianship was sufficiently recent to cause the court concern that petitioner and Charles may still be using drugs. Consequently, the court ordered M. detained and set the jurisdictional hearing for September 2009.
Following the detention hearing, the social worker met with petitioner and Charles to discuss their initial case plan requirements. Petitioner agreed to submit to random drug testing and agreed that she would enroll in substance abuse treatment if she tested positive.
In its jurisdictional report, the department provided more detail concerning petitioner’s services and compliance in the prior dependency case (sibling case). According to an excerpt taken from the status report for the 18-month review hearing, petitioner was ordered to complete parenting, child neglect and substance abuse counseling. She completed the parenting and child neglect counseling prior to the 12-month review hearing in November 2007. She completed substance abuse counseling in February 2008. However, because she lacked housing and had presumptive positive drug test results, the juvenile court terminated her services.
The department also provided the juvenile court with petitioner and Charles’s most recent drug test results. They were each drug tested twice; she in July and August 2009, he twice in July 2009. Both of petitioner’s test results were negative while one of Charles’s was positive for methamphetamine. Despite petitioner’s negative drug test results, the social worker advised her to seek relapse prevention counseling.
The department also recommended the juvenile court adjudge M. a dependent of the court based on the allegations as well as on petitioner and Charles’s “confirmed positive drug tests,” and petitioner’s “numerous” narcotics convictions.
In early September 2009, M. was diagnosed with mild to moderate pulmonary stenosis (narrowing of the heart valve). According to M.’s treating physicians, the condition requires close monitoring and regular follow-up and is potentially fatal.
In mid-September 2009, the juvenile court conducted an uncontested jurisdictional hearing. By this time, Charles and petitioner were no longer living together and he did not appear at the hearing. Petitioner submitted the matter on the evidence in the department’s jurisdictional report and waived her right to a hearing. The juvenile court took judicial notice of the sibling case, adopted the department’s recommendations as to M. and set a dispositional hearing for October 2009. At the conclusion of the hearing, petitioner’s attorney told the court petitioner was informed two weeks prior of M.’s heart condition and wanted to attend her doctor’s appointments. The court ordered that petitioner was to be advised of the appointments and was allowed to attend them.
Petitioner continued to test negative for drugs and, in late September 2009, she enrolled in an outpatient substance abuse treatment program. However, she missed 20 scheduled counseling sessions and was discharged from treatment a month later. She also missed five scheduled visits with M. in October and November 2009 as well as a medical appointment for M. in October.
In its dispositional report, the department recommended the juvenile court deny petitioner and Charles reunification services pursuant to section 361.5, subdivision (b)(10) based on their failure to reunify with M.’s siblings and failure to comply with the initial services plan for M. In support of its recommendation, the department reported Charles visited M. only three times after her detention and did not enroll in any of his initial case plan components. As to petitioner, the department acknowledged she tested negative for drugs but cited her failure to demonstrate progress in relapse prevention. The department also credited petitioner for maintaining the same residence since May 2009 but reminded the court of her history of homelessness. Finally, the department questioned petitioner’s ability to provide M. adequate medical care given petitioner’s history of drug abuse, relapse, and homelessness.
The dispositional hearing was continued and conducted in December 2009. Petitioner’s attorney called the caseworker who testified that petitioner had not missed any drug tests or tested positive since the inception of the case. Petitioner testified she had been attending NA meetings since the daughters were removed from her custody in September 2006 and she has a sponsor. She said she was dropped from the relapse prevention program and missed visits because of lack of transportation. She said she relied on her mother for transportation, but her mother was in the hospital for awhile following surgery. As a result, petitioner traveled by bus. She testified she planned to stay in her home and could afford to continue living there. She also testified she suffered depression when the daughters were taken from her, and she would like mental health counseling to deal with her depression.
During argument, petitioner’s attorney set forth the two prongs required for denial of services under section 361.5, subdivision (b)(10): a prior order terminating reunification services as to a sibling and subsequent failure to make a reasonable effort to resolve the problem necessitating the sibling’s removal. Her attorney conceded the first prong was satisfied in that petitioner’s reunification services as to her daughters were terminated in 2008. However, he argued, there was no evidence she used drugs after that. Rather, her criminal and drug testing record from 2006 and participation in NA meetings support her contention she remained abstinent following the removal of her children in 2006. Consequently, he argued, she made subsequent reasonable efforts under the statute and should not be denied reunification services. In addition, he argued, she demonstrated she could maintain a stable home and asked the court to consider placing M. with her under a plan of family maintenance.
County counsel did not address the applicability of section 361.5, subdivision (b)(10) but argued petitioner failed to show services would serve M.’s best interest. Nevertheless, the court questioned county counsel about petitioner’s assertion that petitioner made subsequent reasonable efforts. County counsel responded: “Well, your Honor, on May 14th of 2009, the Court made a finding that there was clear and convincing evidence that the mother had failed to participate and make substantive progress in [c]ourt-ordered treatment programs, and I don’t believe that the mother has made an effort to alleviate those issues since that time.”
This is a finding the juvenile court would have made at the 18-month review hearing in May 2008. Consequently, the date should be May 2008. Either county counsel misspoke or the date was not transcribed correctly.
Without further discussion, the juvenile court ordered M. removed from petitioner and Charles’s custody and denied them reunification services under section 361.5, subdivision (b)(10). The court found petitioner had not made reasonable efforts to treat the problems leading to the removal of the daughters. Specifically, the court stated, “[petitioner] has not gone on to address the issues of substance abuse that the Court found to still exist when reunification services were terminated in regard to the sibling….” The court further stated, “[Petitioner], by her own admission, has recognized that depression is an issue for her as well [and] she has not sought treatment for that, and again, since the child was removed from [petitioner’s] care, [petitioner] has not involved herself in substance abuse counseling, although she certainly has tested negatively since that removal.” Finally, the court found it would not be in M.’s best interest to provide petitioner and Charles reunification services and set a section 366.26 hearing. This petition ensued.
Charles did not file a writ petition.
DISCUSSION
Petitioner contends there was insufficient evidence for the juvenile court to conclude M. would be at a substantial risk of danger in her care and there were no alternatives to removal. Therefore, she argues, the court erred in ordering M. removed. We agree.
“At the dispositional hearing, … there is a statutory presumption that the child will be returned to parental custody … [T]he burden is on the state to prove, by clear and convincing evidence, that removal of the child from the parent’s custody is necessary.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Section 361, subdivision (c), the governing statute, provides in relevant part:
The heightened standard of clear and convincing evidence reflects a shift in “emphasis of the child dependency laws to maintaining children in their natural parents’ homes where it was safe to do so.…” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1216.) It is also “appropriate in light of the constitutionally protected rights of parents to care, custody and management of the children. [Citation.]” (In re Basilio T. (1992) 4 Cal.App.4th 155, 169.) On review, we employ the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
In this case, substantial evidence does not support the removal order. The department’s initial concerns with respect to petitioner were her history of drug use and homelessness and the presence of Charles in the home. However, by the dispositional hearing, petitioner had lived in the same home for approximately seven months and she and Charles were no longer living together. Additionally, there was no evidence petitioner was using drugs. She drug tested for the department starting the day M. was born. She never failed to drug test when asked to do so and consistently drug tested negative. Further, it is undisputed on this record that petitioner had a sponsor and regularly attended NA meetings.
That said, we are cognizant of petitioner’s agreement with the department that she would enroll in substance abuse counseling if she tested positive for drugs. However, she did not test positive thus obviating her obligation to complete drug treatment. We are also aware of the fact that petitioner enrolled in but failed to complete a relapse prevention program. However, she was not court-ordered to complete such a program. Based on the evidence as presented in this record, one can only conclude petitioner fully complied with the court’s orders and infer that petitioner was not using drugs.
We are further aware that other concerns developed after M. was detained that caused concern with respect to placing M. back in petitioner’s custody. Chief among these concerns was M.’s heart condition and the fear that petitioner may not be able to provide proper medical oversight. However, the department provided no evidence that petitioner could not provide appropriate care. The other issue raised was petitioner’s depression. Again, there is no evidence that her depression was any more than generalized depression in the distant past or that her mental state had or would interfere with her ability to care for M. Given the evidence as set forth above and the heightened standard of clear and convincing evidence, we simply cannot conclude substantial evidence supports a finding M. would be at a substantial risk of harm if returned to petitioner’s custody.
Further, there is no evidence on the record that the department considered any alternatives to removal. It seems to this court that the department’s focus in this case was on establishing a basis for a denial of reunification services without regard to whether returning M. to petitioner’s care was even an option. However, before the juvenile court can consider denying a parent reunification services, it must first find cause to remove the child. In this case, no such cause can be found, at least not on this record.
Based on the foregoing, we conclude substantial evidence does not support the juvenile court’s order removing M. from petitioner’s custody. Consequently, the juvenile court’s removal order was error and we will grant the petition. Further, having concluded the juvenile court erred in ordering M. removed, we need not address petitioner’s alternative argument the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(10).
DISPOSITION
Let an extraordinary writ issue directing respondent court to vacate its orders of December 1, 2009, removing M. from petitioner’s custody, denying petitioner reunification services under section 361.5, subdivision (b)(10), and setting the section 366.26 hearing. Respondent court is further directed to conduct a new dispositional hearing and issue new findings and orders taking into consideration any new evidence or change in circumstances. This opinion is final forthwith as to this court.