Brenda D. v. Sup. Ct

Filed 10/4/06 Brenda D. v. Sup. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Keith F. Vickers for Petitioner.

No appearance for Respondent.

Dennis E. Wagner, Interim County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.

Petitioner Brenda D. (mother) is the mother of dependent child Brianna M. (minor). Mother challenges the respondent juvenile court’s decision to terminate her reunification services as to the minor at the 12-month status review hearing. (Welf. & Inst. Code, § 366.21, subd. (f).)^[1] After a careful review of the record in this matter, we deny the petition.

Facts and Procedure

1. Detention and Jurisdiction

On January 30, 2005, mother and her boyfriend, the minor’s father, got into an argument. Father threw mother to the floor and choked her. Mother left the motel room and eventually called police. When the police arrived, father initially kept them at bay by holding the then four-year-old minor off the ground with one arm while pointing a seven- to eight-inch knife at her neck with the other. Father eventually gave up, was arrested, and sentenced to two years in state prison.

The San Bernardino County Department of Children’s Services (department) received a report of the knife incident on February 21, 2005, and first contacted mother and minor on March 2, 2005. At that time, mother said she did not believe that father had held a knife to minor’s neck. Mother also admitted that she drinks on a regular basis. When asked if she would participate in family maintenance services, mother said that she would take minor to counseling, but would not seek treatment for alcoholism or enter therapy to address domestic violence.

Mother also stated that they had recently moved to California from Pennsylvania. The social worker contacted child welfare officials in that state and discovered that the family had been placed on a family maintenance plan in 2001, after a domestic violence dispute between the parents had left the 11-month-old minor with a bump on her head from a door falling on her. The Pennsylvania court had ordered that visitation between father and minor be supervised by a third party. It was also reported that father had a long criminal record and that both parents had admitted to alcoholism.

The department initially decided to file a dependency petition and offer family maintenance services to mother. However, after mother reported that she had been taking minor to visit father since he had been incarcerated, the department decided to recommend that minor be detained.

At the March 17, 2005, detention hearing, minor was detained, the court ordered the department to provide mother with reunification services, and mother was to have supervised visitation and undergo an immediate drug test.

On May 16, 2005, after mediation between the parties, the juvenile court declared minor to be a dependent child, and found true allegations in the section 300 petition that mother and father had failed to protect minor (§ 300, subd. (b)), that minor had suffered serious emotional damage from her father holding a knife to her throat (§ 300, subd. (c)),

and that father had made no provision for her support because he was incarcerated (§ 300, subd. (g)). The court ordered mother to participate in the reunification case plan and authorized two visits per week. The case plan included parenting classes, anger management, psychological counseling, and outpatient substance abuse treatment.

Mother married Mr. D. in June 2005. Although mother initially told the social worker that Mr. D. did not have a criminal history, he refused to have his fingerprints taken (live scan) so that minor could spend Thanksgiving with the family. The social worker discovered that Mr. D. had a criminal record spanning from 1981 to 2004, including burglary, vehicle theft, battery, contempt of court, inflicting corporal injury on a spouse, arson, attempted murder, and violations of parole. Included in this history were two active warrants for disorderly conduct and solicitation for prostitution. Mr. D. never did have a live scan performed.

2. Six-Month Review Hearing

At the December 13, 2005, six-month review hearing, the juvenile court ordered six more months of reunification services. Mother had completed parenting, anger management, and domestic violence programs. However, mother had missed 10 out of 22 days of her outpatient drug treatment program, had refused to drug test once, had turned in “many” diluted tests, and had once tested positive for methamphetamine. The court altered the case plan to require three substance abuse meetings per week, in addition to drug testing twice per month. The court also ordered that mother’s counseling sessions specifically address “protecting her child from men and the fact that she chooses to have relationships with men who have domestic violence problems.”

3. 12-Month Review Hearing

The 12-month review hearing was held on June 8, 2006. In the status review report dated May 10, 2006, the department recommended that reunification services be continued. The report indicated that mother’s sessions with her drug treatment therapist were at first to be “extended a second time for an additional thirty days because of her poor attendance.” However, the therapist ultimately decided that mother “had many issues aside from substance abuse that would be better served by continuing individual psychotherapy with her current therapist.” Mother attended a single individual counseling session with a new therapist on January 4, 2006. The therapist reported that mother explained how she had done nothing wrong and should have her daughter returned to her, and that mother “exploded” when questioned about her marriage to Mr. D., stating that she did not understand why the department was concerned about him being involved with minor. Mother did not return to that therapist, but instead arranged counseling at Kaiser through her own insurance. Mother testified at the 12-month hearing that she had attended one counseling session at Kaiser at the time of the 12-month review hearing. Mother attended an intensive 14-day chemical dependency recovery program at Kaiser and was attending alcoholism recovery meetings several times per week.

The social worker reported that by November 2005, mother had completed 12 sessions with a previous therapist, but had not told the therapist that her current husband had a criminal and domestic violence background. Mother failed to drug test on February 15 and March 31, 2006. She tested positive for opiates on February 22, 2006.

In an addendum report dated May 25, 2006, the department changed its recommendation to termination of reunification services. The change was based on the following information: First, the social worker had received two recent drug tests, dated March 2 and April 18, 2006--both were diluted; and second, minor’s once positive behavior and attitude had deteriorated significantly after a recent visit from mother. Mother had showed minor pictures of mother’s new home, and a room set up for minor, including a new comforter, television, and DVD player. Mother promised that minor would be returning to her soon to live in the new house. Minor told the social worker when asked that mother had been “telling secrets” during the twice-weekly visitation, including that Mr. D. would be her “new dad” and that his adult children would be her sisters.

At the June 8, 2006, hearing, the social worker testified that mother had always attended the twice-weekly visitation with minor and that she initially appeared motivated to complete the reunification plan. However, mother had become “defensive and difficult” after the six-month review hearing when the social worker and court explained to her that she had additional services to complete and issues to address before minor could be returned to her. The social worker described the additional issues that remained to be addressed: First, Mr. D. would have to complete counseling to address the domestic violence incidents in his past; second, the social worker would need to speak with mother’s therapist to “go over specific issues that mom has in dealing with what type of men she brings into the home and how those type of men can place the child in danger”; third, mother would need to finish addressing her substance abuse issues and have consistent, valid, and negative drug tests; and fourth, mother would need to attend conjoint counseling with minor.

The juvenile court concluded that mother had not made substantive progress in the reunification plan and there was not a substantial probability that minor would be returned to mother within 18 months of the initial detention. For those reasons, the juvenile court terminated reunification services, and scheduled a selection and implementation hearing under section 366.26.

Discussion

Mother contends that the juvenile court abused its discretion when it terminated her reunification services. Specifically, mother argues that the juvenile court failed to consider or address the evidence that she had “completed” psychotherapy counseling, domestic violence counseling, parenting classes, anger management, and behavioral treatment.

At the 12-month status review hearing, the court must return the child to the parent unless it finds by a preponderance of the evidence that the return of the child would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f); In re James Q. (2000) 81 Cal.App.4th 255.) The burden is on the social worker to establish such detriment. More to the point, “The failure of the parent . . . to participate regularly and make substantive progress in court ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f).) The findings of the juvenile court regarding detriment are reviewed to determine whether they are supported by substantial evidence in the record. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758.)

Here, the juvenile court concluded that, although mother had made some progress in her reunification plan, her participation since the six-month review hearing had been “irregular” and she had not made substantive progress since then. Specifically, the court acknowledged that mother had recently engaged in an intensive 14-day chemical dependency recovery program at Kaiser, which she stated included a drug test component, and was attending meetings with a 12-step recovery program. However, the court also pointed out that it had received no confirmation of any drug test results from that program, whereas he had concrete results that mother had tested positive for opiates and had admitted at the hearing that she had acted purposely to dilute test samples in order to avoid positive test results. In addition, the court considered that, since the December 13, 2005, six-month review hearing, at which it ordered mother to engage in individual counseling specifically aimed at addressing her involvement with men with criminal backgrounds and its affect on minor’s safety and welfare, mother had one session in January 2006 with a therapist to whom she did not return and had only one session in May 2006 with a new therapist from Kaiser. Based on these factors considered by the juvenile court, we conclude that substantial evidence supports the court’s conclusion that mother failed to participate regularly and make substantive progress in her reunification case plan, especially in the interim between the six-month and 12-month review hearings. This conclusion is then prima facie evidence that returning minor to her mother would be detrimental to minor.

Further, the juvenile court may extend services to a parent past the 12-month mark^[2] “only if it finds that there is a substantial probability that the child will be returned to the physical custody of [the parent]” within 18 months after the child was removed from the parent’s custody. (§ 361.5, subd. (a)(3).) Here, minor was removed from mother at the March 17, 2005, detention hearing and so the 18-month mark would be no later than September 17, 2006. The trial court did not abuse its discretion when it concluded that there was not a substantial probability that minor would be returned to mother in the following three months. This is based on mother’s lack of substantive progress in the six months prior to the June 8, 2006, 12-month review hearing, after having been given clear instructions as to what she needed to do to complete the reunification case plan by the court at the six-month review hearing.

Disposition

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[2] “For a child who, on the date of initial removal from the physical custody of [the parents], was three years of age or older, court-ordered services shall not exceed a period of 12 months from the date the child entered foster care, except as otherwise provided in paragraph (3).” (§ 361.5, subd. (a)(1).)