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Z.B. v. Superior Court of San Diego Cnty.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 5, 2012
D060624 (Cal. Ct. App. Jan. 5, 2012)

Opinion

D060624

01-05-2012

Z.B., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. EJ3154A/B)

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Ronald Frazier, Judge. Petition denied; request for stay denied.

Z.B. seeks writ review of orders terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding her daughter Julia S. She contends the court erred by finding there was not a substantial probability that Julia would be returned to her custody within the next six months. We deny the petition.

Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2009, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of then 11-year-old Savannah H., eight-year-old Julia, five- year-old Jack D. and eight-month old Jamie S. under section 300, subdivision (b), alleging Z.B. was unable to provide regular care because of her alcohol abuse, and the children were not provided with a suitable home. There were reports that on several occasions Z.B. had not picked up Jack from school, she was not caring for the children and would not allow family members to provide care for them, and she abused alcohol, methamphetamine and pills.

The children were detained with their maternal aunt, Shannon M. Shannon reported that when Z.B. visited the children on Halloween she smelled of alcohol, she took Jamie from the home, and when she returned she was even more intoxicated. Savannah said she had assumed a lot of the responsibility of caring for her siblings and she wanted Z.B. to stop drinking.

In December 2009, the court found true the allegation Z.B. was unable to provide care because of her alcohol abuse. It removed custody, ordered placement with Shannon and ordered Z.B. to comply with a case plan that included counseling, parenting education, treatment for alcohol abuse and visitation.

In February 2010, Z.B. enrolled in the Family Recovery Center (FRC) residential substance abuse treatment program. At the six-month review hearing in August, the court continued services. During the next six months, Z.B. participated in services and by November she and her nondependent infant daughter had moved from the FRC facility to its transitional housing two blocks away.

Savannah, Julia, Jack and Jamie continued to live with Shannon. Savannah's therapist reported Savannah said she did not trust Z.B. and did not want to reunify or visit her. Julia was more ambivalent about Z.B., but she showed signs of depression, which her therapist attributed to her anxiety about visits with Z.B.

In January 2011, the court ordered Jamie placed with Z.B. on a sixty-day trial visit and Jack began overnight visits. Savannah continued not to want to visit Z.B., and Julia said she was not ready to return to her care.

At the 12-month hearing in March 2011 the court continued services.

In April 2011, the social worker reported Z.B. continued to make progress and she had moved to FRC's aftercare program, but Savannah and Julia still did not want to visit her. Julia told the social worker that during a recent visit Z.B. drove her and her three younger siblings to their maternal uncle, Eric's, home and left them in her van alone for what seemed like a long time. Julia said another uncle, Dustin, was also present, and several years earlier Z.B. and Dustin had a bloody physical altercation while Z.B. was holding Jack. Jack confirmed Julia's account of the visit and said he was afraid when Dustin came to the van, opened the door and twice threw him in the air. Z.B. told Jack not to report the incident.

In July 2011, Savannah disclosed Eric had molested her when she was younger and he had videotaped himself molesting her. Shannon told the social worker Eric also had molested her when they were children.

Julia's therapist said one of Julia's therapeutic goals was to process and understand her feelings about separation from Z.B. and her ambivalence about reunification. The therapist reported Julia may have attention deficit hyperactivity disorder, which had been slowing her progress in therapy. She said Julia was not able to focus during therapy when there was increased pressure to visit Z.B. She said Julia sees herself as the lost child in the family and believes Z.B. ignores her feelings and makes her feel insignificant. The therapist did not recommended conjoint therapy for Julia and Z.B. in the near future.

At the 18-month hearing in September 2011, Julia's therapist testified Julia's treatment goals involved her history of neglect, and they were working on her coping skills and safety planning, and were processing trauma issues and talking and learning about feelings and how to cope with anxiety and other symptoms of depression. The therapist said it would be detrimental emotionally for Julia to return to Z.B. She said Julia sometimes expressed emotional distress by having tantrums or shutting down during therapy, she would not talk about the possibility of living with Z.B. and during the past month she had not wanted to visit her.

It was stipulated that if Julia were to testify she would say she did not want to live with Z.B. and the thought of doing so made her depressed, anxious and worried. She did not believe Z.B. listened to her or paid attention to her during visits and she did not feel safe with her.

The social worker testified that when she told Julia there was a possibility of returning to Z.B., Julia's usually friendly demeanor changed and she shut down and appeared anxious. During the past two months her anxiety had become severe and she had been evaluated for psychotropic medication.

Z.B. testified she was sorry Julia thought she paid more attention to the other children than to her and denied she had done anything since she began recovery to cause concern for Julia's need for emotional safety.

After considering the evidence and argument by counsel, the court found Z.B. had been provided reasonable reunification services and she had made substantive progress with the provisions of her case plan. The court found returning Julia to Z.B.'s custody would cause a substantial risk of detriment to Julia's emotional well-being, and there was no reasonable probability of return within the next six months. The court terminated Z.B.'s services, continued Julia's placement with Shannon, ordered Julia and Z.B. to participate in conjoint therapy and scheduled a section 366.26 hearing.

Z.B. petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Z.B. contends the court erred by finding there was not a substantial probability that Julia would be returned to her custody within six months. She argues she had continuing and regular contact with Julia, and she had made significant and consistent progress in resolving the problems that led to Julia's removal from her care, shown by the fact that Julia's three younger siblings are living with her.

Legal Authority:

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036- 1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

A court may extend services beyond the 18-month date only in an extraordinary case. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377.)

Section 366.22, subdivision (b) provides in part:

"If the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, . . . the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. 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 or legal guardian and safely maintained in the home within the extended period of time . . . ."

Application:

Assuming Z.B. has preserved this issue for appeal, substantial evidence supports the court's finding there was no reasonable probability Julia would return to her care by the 24-month date.

First, Z.B. was no longer in a residential substance abuse treatment program. Ten months before the hearing, she had left the residential facility at FRC to go to FRC's transitional housing and since that time she had moved to aftercare. Thus, as section 366.22, subdivision (b) requires the parent to be making significant progress in a residential treatment program, it is questionable whether Z.B. qualifies for an extension of services under section 366.22, subdivision (b).

In any event, substantial evidence supports the court's finding there was no substantial probability Julia would return to her care by the 24-month date. Section 366.22, subdivision (b) allows the reunification period to be extended only to the date 24 months after the original removal order. Julia was ordered detained from Z.B.'s custody on October 26, 2009. The 18-month hearing took place on September 26, 2011. Thus, there was only one month remaining until the 24-month date. There was not a substantial probability that Julia could be safely returned to Z.B.'s custody by that time.

Julia was anxious about spending time with Z.B. and showing signs of depression. Her therapist had earlier reported that Julia was ambivalent about Z.B. and did not trust her. Julia said she was not ready to return to living with Z.B. and told of violent, dangerous situations she had seen between Z.B. and Dustin.

As Julia felt increased pressure to visit Z.B., she had more trouble focusing during therapy and experienced episodes of having blank stares. The therapist said Julia appeared detached when she talked about visits and said she visited Z.B. only because she was told she had to go. The therapist did not recommend conjoint therapy for them in the near future. She testified Julia did not believe she could be open with Z.B. because she was afraid of negative repercussions. The social worker said when she mentioned to Julia that she might possibly return to Z.B., Julia's shoulders slumped, she did not maintain eye contact and she began fidgeting with her hands. Julia's anxiety was so severe that she was evaluated for psychotropic medication.

Although Z.B. had made significant progress, the fact a parent has completed his or her reunification plan does not necessarily mean the child should be returned to the parent's care. (In re Joseph B. (1996) 42 Cal.App.4th 890, 901.) Julia had suffered severe emotional harm while in Z.B.'s custody. She was still showing the effects of her life with Z.B. two years later. One month of conjoint therapy would not resolve her emotional distress so that she could safely return to Z.B.'s care. Substantial evidence supports the court's orders.

DISPOSITION

The petition is denied. The request for stay is denied.

____________

NARES, Acting P. J.
WE CONCUR:

_______

HALLER, J.

_________

McINTYRE, J.


Summaries of

Z.B. v. Superior Court of San Diego Cnty.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 5, 2012
D060624 (Cal. Ct. App. Jan. 5, 2012)
Case details for

Z.B. v. Superior Court of San Diego Cnty.

Case Details

Full title:Z.B., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent…

Court:COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 5, 2012

Citations

D060624 (Cal. Ct. App. Jan. 5, 2012)

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