Opinion
A133516
01-12-2012
In re A.D., a Person Coming Under the Juvenile Court Law. VANESSA D., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J11-00044)
Vanessa D. (Mother) challenges an order of the juvenile court terminating reunification services and setting a hearing to select a permanent plan for her one-year old daughter, A.D. (Welf. & Inst. Code, § 366.26). Mother contends the juvenile court erred in finding that: (1) she failed to participate regularly and make substantive progress in her court-ordered treatment plan, and (2) there is no substantial probability A.D. might be returned to her within six months. (See § 366.21, subd. (e).) We deny the petition, as we conclude substantial evidence supports the juvenile court's order.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother used methamphetamine throughout her pregnancy with A.D. On December 28, 2010, A.D. was born five-weeks premature, weighing 4 pounds, 9 ounces. Drug tests of Mother and A.D. at birth came back positive for methamphetamine. A.D. was found to have a hole in her heart, blood clotting issues, and seizures. Her exposure to drugs and alcohol was expected to cause neurological issues and developmental delays.
A.D.'s father, D.V. (Father), acknowledged paternity and said he and Mother planned to raise A.D. together. He has a 2000 arrest for possession of methamphetamine but claimed the drugs were not his and denied current use of drugs and alcohol. He admitted a gambling addiction.
On January 11, 2011, the Contra Costa County Children and Family Services Bureau (the Bureau) petitioned to establish A.D. as a dependent of the juvenile court under section 300, subdivisions (b) and (g). The petition alleged that A.D. required a high level of consistent, diligent care but that Mother's substance abuse problem interfered with her ability to care for the child and Father was unable to do so. The court ordered detention of A.D. the next day.
On January 18, 2011, the court took jurisdiction over A.D. and ordered supervised visitation for both parents twice a month.
On January 31, 2011, Mother entered a residential substance abuse treatment program. She was terminated from the program on February 15, 2011, after returning three hours late from a court hearing and a doctor's appointment. A counselor reported: " '[S]he did not want to be there anyway.' " Two days later, a social worker talked to Mother, who "spoke at length about how she missed her child," but "seemed quite agitated, overly talkative, and . . . unable to listen to what the social worker was trying to tell her." She did not attend visitation with A.D. again until mid-March 2011.
In a disposition report dated February 17, 2011, the Bureau found Mother did not have the capacity to safely meet A.D.'s needs at that time and "need[ed] to address her substance abuse issues before A.D. can be returned to her care." The Bureau believed Mother "needs to be in a residential program." The report indicates that both parents "would like the child to be returned to their care," had consistently visited her, and had maintained communication with social workers. At that time, A.D. was residing in a foster home that specializes in providing care to medically fragile infants and was "thriving in their care."
The Bureau recommended family reunification services and a review hearing in six months. Under the recommended case plan, Mother was required to attend parenting classes and counseling regarding her gambling problem, complete a residential substance abuse treatment program, and submit to random drug testing. Father was required to participate in counseling and a recovery group for his gambling addiction, attend parenting classes, and submit to random drug testing for 90 days. The case plan also required regular visitation with A.D.
In late February 2011, Mother began attending an outpatient program at Kaiser Permanente (Kaiser), with random drug testing daily. She tested positive for alcohol on March 2, 2011. The program required weekly meetings with a therapist and attendance at outside 12-step meetings. After 12 days in the program, Mother had attended only three outside meetings.
At the disposition hearing on March 15, 2011, the juvenile court declared A.D. a dependent child and adopted the Bureau's recommended case plan.
Mother, Father, and A.D.'s maternal grandparents consistently attended visitation until late April 2011, when Mother began to miss visits. The record initially indicates that she missed visitation due to a conflict with the Kaiser program but later notes that she was suspended from the program on April 22, 2011, because of excessive absences and a positive test for methamphetamine.
In mid-June, 2011, Mother entered residential treatment at Marin Services for Women (Marin Services), but was discharged after five days because staff could not locate her. On July 7, 2011, Mother reentered residential treatment at Marin Services. A.D. was transported to the program for supervised visitation, and Mother expressed interest in having A.D. placed with her in the treatment program. Father continued to attend twice monthly visits with A.D. at the Bureau and requested additional visits with her.
In late August 2011, the Bureau filed a status review report recommending continued reunification services for both parents. The Bureau said Mother "appears to be more empowered" and "appears to be applying herself more" than in the past. She was receiving parenting education and had been observed applying what she learned during her visits with A.D. The report describes Mother as "appropriate, loving, doting" during her visits with A.D. The report notes, however, that Mother was referred for random drug testing in April 2011, but had not yet completed intake. She had submitted to random drug testing through Kaiser, but the Bureau did not have copies of the test results.
The report indicates that Father regularly attended visitation with A.D. and "sporadically participated in services to meet his case plan goals," including attendance at Gamblers Anonymous meetings, sporadic attendance at random drug testing appointments, and enrollment in parenting education.
Nonetheless, the Bureau had "serious concerns regarding returning [A.D.] to the care of either parent at this time. [Father] has missed several random drug testing appointments in addition to dilute and positive test results; therefore his sobriety remains in question at this time. [Mother] has taken several months to get stabilized into a treatment program and the Bureau feels that her sobriety is still very new. She has not had an opportunity to demonstrate her commitment to her sobriety outside of a treatment program. The Bureau feels that she is need of continued treatment to address her addiction issues before she assumes the role of caring for her child full time." The report notes that Father was "very involved and supportive of [Mother's] treatment" but that he and Mother would be coparenting, and the Bureau was concerned that his continued use of drugs and alcohol would undermine her recovery. The Bureau recommended modification of the case plan to require Father to complete an outpatient substance abuse treatment program.
Father began submitting to random drug testing in June 2011. On June 24, his test results were diluted, and on June 28, July 8, July 11, and July 22, he was a "no-show." He tested positive for alcohol on August 4.
The Bureau recommended that the court find a substantial probability A.D. would be returned to her parents by January 18, 2012, if services were extended.
The court amended the case plan, but A.D.'s attorney challenged the Bureau's recommendation, and the matter was set for a contested hearing on October 4, 2011.
In a September 28, 2011 report, the social worker said she had not had any contact with Mother "since her graduation from Marin Services." Mother's parents said she had been attending aftercare at Kaiser, but Kaiser would not confirm this, as Mother had not provided authorization to release any information. Mother had not completed an intake for random drug testing or provided her earlier test results, despite a detailed email informing her of the need to do so. The social worker also said she had not had any contact with Father, who had not submitted to drug testing since August 4, 2011, and missed three appointments to test. The report notes, however: "[Mother] appears to be growing in her comfort in interacting and providing basic care for [A.D.] during the visits" and "[Father] enjoys interacting and doting over [A.D.] during the visits." A.D. had been placed in the home of her maternal grandparents on September 27, 2011.
At the six-month review hearing, the Bureau recommended continuing reunification services, but county counsel was unable to reach the social worker to confirm the recommendation in light of the September 28, 2011 report. A.D.'s counsel strongly disagreed with the recommendation, noting that Mother had not provided drug test results since April 2011, and "the parents have had very little success even in doing the minimum visits." She recommended that the maternal grandparents become a concurrent home for A.D.
A.D.'s counsel based this argument on her contention that the parents had attended visitation only once in August and September, but the September visit was cancelled due to the foster parent's scheduling conflict, and Father missed a visit in August when he was hospitalized.
Father testified that he had visited A.D. as often as he was allowed and attended two medical appointments, but was never informed of any others and would have attended if he had known. He provided a certificate of completion for an online parenting course and documents indicating he had attended 10 or 11 Gambler's Anonymous meetings. He had not received counseling for his gambling problem, and had not entered an outpatient treatment program or attended drug and alcohol recovery meetings, stating he did not know he was required to do so.
Father explained that he had failed to test on two occasions because the facility was closed when he arrived even though the business hours on its flyer indicated it would be open at that time. He said he stopped checking for appointments, as he assumed testing had ended because the case plan only required him to test for 90 days. He claimed he was not aware he was being tested for alcohol.
Father did not begin testing until June 2011, but said he left messages informing the social worker that he would be in Oregon for the month of May and offered to drug test there, but she never returned his calls. Counsel said Father "was going to Oregon to take care of his father . . . ."
Father said he left the social worker several messages over a four-month period, but she had returned his call only once.
Mother did not testify or call any witnesses. Her attorney said she had graduated from Marin Services and was in aftercare, offering into evidence drug tests from February 23, 2011, through April 21, 2011, and two letters from Marin Services, dated August 29, 2011. These letters indicate that Mother "plans to complete 61 days of treatment (ending on September 6, 2011)" and return to Kaiser for aftercare. They note that Mother's urinalysis and blood alcohol results were negative except for her August 24, 2011 test, which showed a blood alcohol content of .036. At that time, she "reported drinking Nyquil on a pass as a sleep aid." Marin Services said Mother had "participated actively in treatment and . . . expressed a strong desire to reunite with her daughter," and that this was "[her] primary motivation for sobriety." She had demonstrated a "willingness to 'do what it takes' to stay clean and sober," and was "work[ing] hard" at the program. Staff had noticed a positive change in her.
Mother's attorney also maintained that Marin Services was supposed to fax the court the results of her drug tests since she began the program. County counsel said the treatment program had indicated repeatedly that Mother had not provided a release for this information.
After hearing from counsel, the court said: "I'm going to drug test both parents right now" and took a recess. When the matter reconvened, Mother and Father were not present in the courtroom. The bailiff said: "Father was unable to test. He wasn't ready he indicated. And Mother tried once with a female deputy in the rest room. But she could not test. So she waited outside again in the hallway." Father was seen exiting the courthouse after leaving a note, stating: "Please tell [my attorney] I will test only at a third-party certified lab to assure results are accurate. Please tell [Mother's] attorney . . . as well." Mother's attorney walked around the courthouse and went into the women's restroom, but said Mother was "nowhere to be found."
A.D.'s attorney asked the court to set a section 366.26 hearing, noting: "[A.D.] is very young. She deserves to have a life." She said the parents' failure to participate in the case plan, stay in contact with the social worker, and attend visitation showed they lacked the ability to parent A.D, and would not be able to overcome the issues that led to removal with another six months of services.
The court said: "[I] certainly don't find a substantial probability that the child could be returned to either parent. Just from the fact that I'm watching both parents in court today. I have suspicion both of them may be under the influence. I definitely had a suspicion about Mother. I was watching her carefully. And I had a concern about Dad.
I asked them to test. Boom, they are out of the court. They left the court. They had no intentions of testing which to me is complete evidence of their guilt or the fact that they knew whatever it was was going to show up in their tests." The court said: "I definitely without a doubt find [A.D.] could not be [returned] to Mother. And I also find not for Father." The court noted that Father had "very shaky credibility in some areas" and had not entered outpatient treatment or obtained counseling for his gambling problem, and that Mother had done "hardly any of the things [she was required to do] since . . . April."
The court set a section 366.26 hearing for January 31, 2012, stating: "I do not think these parents are going to get it together. . . . This is a young, [medically] fragile child . . . . [I]f they are not, I think we should look for a concurrent home."
This timely petition followed.
Father filed a notice of intent to seek writ review of the court's order, and the record for both matters was filed in the proceeding on his anticipated petition (A133517). He never filed a petition, however, and the court dismissed A133517, striking the record as to that proceeding, but not as to Mother's petition. As Father does not seek writ review of the court's order, we consider it only to the extent it determines Mother's rights.
DISCUSSION
Mother challenges the order setting a section 366.26 hearing. We review the order for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020; In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.)
"The clear and convincing standard was adopted to guide the trial court; it is not a standard for appellate review. [Citation.] The substantial evidence rule applies no matter what the standard of proof at trial." (In re E.B. (2010) 184 Cal.App.4th 568, 578.)
Court-ordered services for children who are under the age of three at the time of their initial removal are limited to "a period of six months from the [six month review hearing] . . . but no longer than 12 months from the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(B).) In certain circumstances, however, the juvenile court may set a section 366.26 hearing to determine a permanent plan for the child before the 12-month permanency hearing. At the six-month review hearing, the juvenile court may set a section 366.26 hearing within 120 days: (1) if the child was under age three at the time of initial removal . . . ; and (2) the court finds "by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan . . . ." (§ 366.21, subd. (e); Cal. Rules of Court, rule 5.710(c)(1)(D).) The court must continue the case to the 12-month permanency hearing, however, if it "finds there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . . ." (§ 366.21, subd. (e); Cal. Rules of Court, rule 5.710(c)(1)(D).)
The record indicates that the juvenile court did not expressly find under section 366.21, subdivision (e) and rule 5.710(c)(1)(D) that Mother failed to participate regularly and make substantive progress in a court-ordered treatment plan. Mother has not demonstrated, however, that an express finding in this regard is required, and we imply such a finding from the juvenile court's order and the record, which shows the court found that Mother had done hardly any of the things she was required to do and was still using drugs or alcohol at the time of the hearing.
Mother also contends the court did not make the findings required by sections 361.5, subdivision (a)(3) and California Rules of Court rule 5.695(f)(4), renumbered to rule 5.695(h)(4), as of January 1, 2011. These provisions do not apply here. (See § 361.5, subd. (a)(3) [authority to extend reunification beyond 12 months]; rule 5.695(h)(4) [motions to terminate reunification services for children under three years of age before the six-month status review hearing].) To the extent Mother relies on the portion of rule 5.695(h)(4) that states: "A motion to terminate reunification services at the 6-month review hearing is not required if the court finds . . . that one or more of the circumstances described in section 361.5(a)(2) and rule 5.710(c)(1)(A) is true," she has not provided the facts and analysis necessary to demonstrate error.
Mother contends the evidence at the hearing "directly contradict[s] the notion that [she] has not made substantive progress in her court-ordered treatment." She maintains the statute compels additional reunification services because she had achieved her primary case plan objective by successfully completing an inpatient drug treatment program and had visited with her daughter. She contends the juvenile court's "annoyance or anger with parents is not a valid legal basis for disregarding the evidence of [her] substantial progress on her case plan objectives" and that "[i]t was error for the court to punish [her] for her 'guilt' by terminating her reunification services." (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 ["the purpose of a dependency proceeding . . . is to protect the child, rather than prosecute the parent"].)
The record indicates that the juvenile court acted with regret and not a punitive intent, and that the statutory findings are supported by substantial evidence, notwithstanding Mother's alleged graduation from Marin Services. In addition to completion of residential treatment, the case plan required Mother to stay sober and free from illegal drugs, show her ability to live free from alcohol and drug dependency, and to comply with all required drug tests, with consistently negative results. The last drug test result she submitted was dated April 21, 2011, over five months before the hearing, and that test was positive for methamphetamines. She also tested positive for alcohol on March 2, 2011, and again on August 24, 2011, only six weeks before the hearing. Finally, the juvenile court observed that she appeared to be under the influence at the hearing and reasonably construed her failure to submit to drug testing to indicate she was still using. Thus, although Mother may have complied with some of the requirements of her case plan, the record shows that she had not made substantive progress in the case plan's primary objective —remaining free of drugs and alcohol.
The Marin Services letters indicate only that Mother planned to complete the program, not that she had done so; she still had 61 days to go, and had been discharged from treatment three times in the past. Nonetheless, the September 28, 2011 report notes "her graduation from Marin Services . . . ." Assuming she completed the program, she failed to provide documentation of her attendance at aftercare relapse prevention, as her case plan required.
Mother claims her "inability . . . to produce a urine sample for drug testing in the middle of a contested hearing" is not sufficient to show a lack of substantive progress. Father's note provides substantial evidence that her failure to test was, in fact, a refusal to test, a violation of her case plan and a reasonable indication she was still using drugs or alcohol. And, as discussed above, we do not rely solely on Mother's failure to drug test at the hearing in finding substantial evidence for the court's order.
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For the same reasons, Mother fails in her substantial evidence challenge to the court's finding of no substantial probability that A.D. would be returned in six months. Several factors are relevant to this determination, including whether the parent has consistently and regularly contacted and visited the child, has made significant progress in resolving the problems that led to the child's removal, and has demonstrated the capacity and ability to complete the objectives of the treatment plan and provide for the child's safety, protection, physical and emotional health, and special needs. (Cal. Rules of Court, rule 5.710(c)(1)(D).) As discussed above, the court reasonably could have concluded that Mother had not made significant progress in resolving her substance abuse problems and had not shown she was able to complete her case plan objectives by remaining free of alcohol and drugs in order to consistently and adequately care for A.D.
Mother argues that family preservation is the first priority in juvenile dependency proceedings and that reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." (See David B. v. Superior Court (2004) 123 Cal.App.4th 768, 788.) The law governing such proceedings reflects a particular urgency, however, in providing a permanent home to a child under the age of three. (§§ 361.5, subd. (a)(1)(B), 366.21, subd. (e); Cal. Rules of Court, rule 5.710(c)(1)(D).) Unless the parents make substantive progress in their ability to provide such a home by the six-month review, the court may terminate reunification services and set a hearing to otherwise provide permanency for the child. (§ 366.21, subd. (e).)
DISPOSITION
The petition is denied. The request for a stay of the January 31, 2012 hearing is denied as moot.
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Jenkins, J.
We concur:
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Pollak, Acting P. J.
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Siggins, J.