C.C. v. Sup. Ct.

Filed 10/5/06 C.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Christopher J. Sheldon, Judge. Petition denied.

David A. Wiesen for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Petitioner C.C. (Mother) is the mother of a six-year-old girl (Daughter) and a one-year-old boy (Son). Mother filed this writ petition pursuant to California Rules of Court, rule 38.1(a) challenging an order setting a Welfare and Institutions Code section 366.26^[1] permanency planning hearing as to the children. Mother’s sole contention on appeal is that the juvenile court erred in terminating reunification services and setting a section 366.26 hearing. For the reasons provided below, we reject Mother’s challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

On October 29, 2004, the Riverside County Department of Public Social Services (DPSS) received a report of general neglect of Daughter by Mother. The reporting party disclosed that Mother was homeless and about 12 weeks pregnant with her second child. In addition, the reporting party revealed that Mother’s father had attempted to strangle Mother during a domestic dispute and that Mother had been arrested for possession of methamphetamine and associated drug paraphernalia. Daughter and Mother had been living in the home of the maternal grandparents prior to the domestic dispute.

In December 2004, the social worker went to the maternal grandparents’ home. The maternal grandparents reported that Daughter had been in their care since birth, as Mother suffered from a substance abuse problem. In October, Mother had engaged in a domestic dispute with the maternal grandfather while Mother was under the influence of drugs; at that time she had been involuntarily hospitalized, as she was making suicidal statements. The maternal grandfather explained that he was not choking Mother but was attempting to physically restrain her. The maternal grandparents were advised to seek legal guardianship of Daughter via the probate court. Mother was homeless and living in a car. The social worker she located Mother’s car parked around the corner from the maternal grandparents’ home. When the social worker attempted to speak with Mother, Mother was guarded and uncooperative and asserted her child was not in danger of abuse or neglect. Mother was unwilling to undergo a drug test, stating that she was clean.

Mother had a prior history with DPSS. In July 2004, a referral was received that the maternal grandfather had beaten Mother in front of Daughter after Mother threatened to take the child away from the maternal grandparents. The general neglect allegation was unfounded but substantiated as to caretaker absence/incapacity, as Mother had left the child in the care of the maternal grandparents. The referral was closed when Mother agreed to permit the maternal grandparents to pursue legal guardianship of the child.

On December 14, 2004, Mother was admitted into a hospital after she complained of stomach pains. At that time, Mother admitted to habitual use of marijuana due to a self-described eating disorder. While she was in the process of filing out paperwork at the hospital, Mother became argumentative and tore up the paperwork. Mother suffered from a bipolar/depression disorder and failed to follow through with referrals for outpatient mental health services. Mother was on probation for possession of a controlled substance.

On December 15, 2004, after the social worker discovered that the maternal grandparents had allowed Mother to come into the home despite a restraining order, the social worker took Daughter into protective custody and placed her in the care of her father (Father). Father denied being the father of Mother’s unborn child. When the social worker advised Mother of Daughter’s circumstances, Mother reacted in a “fit of rage,” suspected the hospital staff of filing a secondary report with DPSS, and attempted to leave her hospital bed. Five hospital security hospitals had to be called to calm the situation.

On December 17, 2004, DPSS filed a section 300 petition on behalf of the child pursuant to section 300, subdivisions (b) and (g).

At the detention hearing, the court found that Daughter came within the provisions of section 300 and placed her in her father’s care. Reunification services were ordered pending further hearing. Mother was granted supervised visitation upon assessment for an appropriate program and clean drug tests.

In a jurisdictional/dispositional report filed January 7, 2005, the social worker recommended that the allegations in the petition be found true, that Mother be provided with reunification services, and that Daughter remain placed with Father under family maintenance. Daughter reported she liked living with her father and that her maternal grandparents had spanked her with a belt and hand in the past. Daughter also confirmed that the maternal grandparents had allowed her mother to spend the night in the home and to take her to school, even after the maternal grandparents were informed not to allow such contact.

On December 29, 2004, Mother was detained in jail for violating the terms of her probation by she failing to attend her drug treatment and alcohol abuse classes. Her probation officer recommended that Mother be sent to state prison. Mother had an unresolved substance abuse problem and a criminal record relating to her drug use, and she had minimized her drug use and denied she needed treatment. In addition, Mother had been diagnosed with bipolar disorder but failed to comply with treatment recommendations. On the positive side, however, Mother was supportive of her child being in the care of Father and had acknowledged the need for counseling. Father was willing and eager to have custody of his daughter and was willing to cooperate with services.

At the January 12, 2005, jurisdictional hearing, the parents waived their constitutional rights, and the court found the allegations in the petition true. Daughter was declared a dependent child of the court and maintained in Father’s custody on family maintenance. Mother was granted reunification services and supervised visitation upon attendance in a substance abuse program and testing negative for drugs. The maternal grandparents were also offered supervised visitation. Father was ordered to supervise the visits. Mother’s case plan required her to participate and complete a domestic violence program, general counseling, a parenting program, and an inpatient substance abuse program and to randomly drug test.

In a status review report filed June 24, 2005, the social worker recommended Daughter have overnight and weekend visitation with her mother with a goal of being returned to Mother’s care on family maintenance. In April 2005, Mother gave birth to Son and resided with him at a sober living home. She was receiving social security and welfare, was participating in the MOM’s substance abuse program, and had been complying and testing clean for drugs and alcohol. She was looking for an apartment for her and the children. In addition, Mother had attended and received certificates of completion for a parenting program, an anger management program, and the Tobacco Free Families training program. She had continued to attend her 12-step meetings and a county-sponsored substance abuse treatment program and had been referred for counseling. She remained on probation and was following the conditions of her probation. She had completed an inpatient substance abuse program at Born Free; went to court on her driving under the influence of Vicodin conviction; and was going to enroll in a drunk drivers program to have the suspension of her driver’s license revoked. Mother had been having supervised and unsupervised visits with her daughter; the visits went well, and Mother and Daughter appeared to have a good relationship.

Meanwhile, Father had also adhered to his family maintenance program. Daughter wanted to return to Mother’s care; Father was in agreement with having Daughter returned to Mother’s care, but not at the sober living home.

On July 6, 2005, DPSS filed a section 387 supplemental petition to remove Daughter from Father’s care and place her with Mother on family maintenance services and that Father be provided with reunification services. The social worker learned that Father had been leaving Daughter overnight and on weekends in the care of the maternal grandparents and that Father was allowing Daughter to have unsupervised overnight visits with Mother. In one incident, when the maternal grandparents and Mother attempted to take Daughter to her father’s home, Daughter began screaming and crying, stating she wanted to live with her mother. Daughter informed the social worker that she did not want to live with Father but wanted to stay with her mother and brother. In another incident, when Mother attempted to return Daughter to Father’s home, Daughter again began crying and screaming. Father told Mother to pack Daughter’s things and take her; he stated that he did not want his daughter if she did not want to live with him. In addition, Father had tested positive for marijuana and was in the process of moving in with his girlfriend.

At the July 7, 2005, detention hearing on the supplemental petition, the court removed Daughter from Father’s care. On the same day, a status review hearing was held on the section 300 petition. Daughter was continued a dependent of the court and placed with her mother on family maintenance.

On December 9, 2005, a section 300 petition was filed on behalf of Son pursuant to section 300, subdivisions (b). On that same day, a section 387 supplemental petition was filed on behalf of Daughter. Mother had apparently reverted back to her old ways and was unable to manage the stress of raising two young children. She had failed to drug test since August 2005 and had failed to participate in counseling and outpatient substance abuse treatment. She was also neglecting to take the medication prescribed for her bipolar and depression disorders. Daughter confirmed that her mother was abusing drugs with Mother’s friends. When the social worker went to Mother’s home to speak with her, the social worker noted the home was filthy, with debris all over the floors and counters. Mother denied abusing drugs and explained that she was in the process of cleaning the home. When the social worker repeatedly asked Mother to drug test that day, Mother gave excuses of why she could not. Father had failed to contact the social worker since his move. The children were taken into protective custody.

At the detention hearing, the court found that Daughter and Son came within the provisions of sections 387 and 300, respectively, and placed the children in a confidential foster home.

In a jurisdictional/dispositional report, the social worker recommended that the allegations in the petitions be found true and that the parents be provided with reunification services. Mother appeared to minimize the situation and did not appear to comprehend the negative effect of her actions on her children. She had failed to follow through on her unresolved mental health issues, counseling, drug testing, and substance abuse treatment and had demonstrated poor parenting skills. She was currently unemployed and receiving Supplemental Security Income, and she blamed others, including the social worker, for her predicament. As to Son, Mother was informed that reunification services would not exceed six months due to his age and that Mother had only that amount of time to complete her case plan. Mother stated she understood and that she wanted her brother and his wife to be considered for placement of the child. Mother was also advised that services as to Daughter would not exceed 12 months. Father had made himself unavailable to DPSS and had not participated in his case plan.

At the January 4, 2006, jurisdictional hearing, the court found the allegations in the sections 300 and 387 petitions true, continued Daughter a dependent of the court, and declared Son a dependent of the court. Reunification services and supervised visitation were granted for the parents.

In a status review report filed June 16, 2006, the social worker recommended terminating reunification services to the parents and setting a section 366.26 selection and implementation hearing. On June 6, 2006, only about three weeks before the six-month status review hearing, Mother entered into an inpatient treatment facility at Prototypes Residential Treatment (Prototypes) in Pomona, California, a 9- to 18-month inpatient substance abuse program for persons suffering from “co-occurring disorders” such as bipolar disorder.

Mother had repeatedly failed to randomly drug test. She had been referred back to the MOM’s Program for her substance abuse and then to the Department of Mental Health’s Intensive Brief Treatment Program for her bipolar disorder. She had completed the intensive mental health program on January 31, 2006. She was also referred to a 12-step program. As of March 13, 2006, the MOM’s program could not confirm or deny Mother’s attendance; on April 25, 2006, a letter was mailed to Mother referring her back to the MOM’s program. Mother had participated in two other treatment programs; however, she was asked to leave those programs due to her behavior and failure to take her medication to combat her bipolar disorder. Mother was participating in individual therapy and admitted her drug addiction to her therapist. In addition, there had been a concern that Mother had suicidal ideation. On May 19, 2006, Mother was once more referred to Prototypes, and again on May 24, 2006. As stated, Mother eventually enrolled in Prototypes on June 6, 2006, and admitted to having an addiction to methamphetamine. Although children could reside at that facility with their parent, there was a long waiting list for children to enter the program with their parent. Mother’s children’s names were placed on the waiting list. On August 7, 2006, the court received a letter noting that Mother was in compliance with her treatment plan at Prototypes and that she had permission to allow her children to live with her if the social worker deemed it appropriate. Mother had been given bus passes, and she had been visiting the children. However, Mother had caused Daughter to become upset during visits and made Daughter cry. The social worker recommended changing the visitation order to one visit per month.

Though Father had continued his full-time employment at a restaurant and was an assistant manager, he had had only two visits with his children and had made himself unavailable to DPSS. Meanwhile, the children were flourishing in their foster family home. The maternal grandparents were assessed for placement of the children but were denied for confidential reasons.

The contested review hearing pursuant to section 366.21, subdivision (e) was held on August 7, 2006. Mother’s counsel argued that Mother had entered the program at Prototypes, that she had completed phase I and was in phase II, and that the program had given permission for the children to live with her at the facility. Counsel therefore requested Mother be placed on family maintenance. Minor’s counsel opposed Mother’s request, as the case had been ongoing for over a year and a half; Mother already had been given an opportunity on family maintenance; there was a waiting list for the children to be placed at the Prototypes facility; and the children were stable and doing well in their foster care placement. County counsel noted Mother had only recently enrolled in the Prototypes program, initiating action at the eleventh hour after realizing services were going to be terminated. County counsel further argued that the children require stability, and it would be detrimental to the children to place them with Mother. Following argument from counsel, the juvenile court adopted the findings listed in the social worker’s report. The court thereafter terminated reunification services and set a section 366.26 hearing. The parents were granted supervised visitation once per month and advised of their writ rights. On the same day, Mother filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 38.

II

DISCUSSION

Mother argues that the juvenile court erred in terminating reunification services and setting a section 366.26 hearing. We disagree.

At a review hearing pursuant to section 366.21, subdivision (e), the court must order the return of the child to the physical custody of the parent unless the court finds by a preponderance of the evidence that returning the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e).) The department has the burden of establishing that detriment, but the failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.) “In making its determination, the court shall review and consider the social worker’s report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided.” (Ibid.)

We review the juvenile court’s finding of detriment under the substantial evidence rule. If the court’s findings are supported by substantial evidence, we will uphold them, even if the stated reasons for the decision are erroneous or incomplete. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250.)

Here, the evidence as set out in detail above clearly shows that Mother failed to make substantive progress in her reunification plan. Although she had completed the components of her case plan and was placed on family maintenance status, she reverted back to her old ways in April 2005, after Son was born. Essentially, she had failed to benefit from treatment. She lacked insight into her problems, remained impulsive, and exercised exceedingly poor judgment in stressful situations. Even after many months of therapy, she threatened to commit suicide if the children were not placed in her custody. This is exactly the same tactic she apparently employed during a stressful time in December 2004, when Daughter was initially removed from her care and placed with Father. Mother suffers from serious mental, emotional, and substance abuse problems that have resulted in impulsive and, at times, rather alarming behavior. The failure of treatment to alleviate these problems to any significant degree justifies the juvenile court’s concern for the risk to the children if they were returned to Mother.

Mother argues that she was in substantial compliance with her case plan and was ready to have the children placed back in her care. The record, however, does not support Mother’s underlying premise that she had complied with all material aspects of her reunification plan. To the contrary, she was never successful in the drug treatment component of her plan. Mother had only recently entered the Prototypes program, and it appeared she finally enrolled only because she realized that services were going to be terminated. In addition, she had failed to follow through on her unresolved mental health issues, counseling, drug testing, and substance abuse treatment. She had also failed to take her prescribed medication for her bipolar disorder and had demonstrated poor parenting skills. She was unemployed and had no stable housing. Moreover, she took no responsibility for her actions; minimized the situation; and blamed others, including the social worker, for her predicament. Though it is clear that Mother had consistently visited her children and loved them, Mother had failed to take control of her long-time drug addiction. Mother had the ability to refrain from abusing drugs, as she had done before Daughter was placed back with her on family maintenance and while she was pregnant with Son. Nonetheless, she chose not to and willingly began to abuse drugs, at times, while the children were in the home.

Mother’s characterization of her feeble efforts to combat her drug addiction and mental health issues as constituting compliance is the result of wishful thinking rather than a realistic evaluation of her performance.

As noted above, the failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (§§ 366.21, subds. (e)-(f), 366.22, subd. (a).) Thus, Mother’s failure to participate and make progress in treatment programs created a rebuttable presumption that return would be detrimental. (In re Heather B. (1992) 9 Cal.App.4th 535, 559-560.)

We conclude that there was substantial evidence to support the findings of substantial risk of detriment to the children if they were returned to Mother’s custody. Accordingly, the court did not err in terminating reunification services and setting a section 366.26 hearing.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.