Elizabeth Q. v. Sup. Ct.

Filed 2/28/07 Elizabeth Q. v. Sup. Ct. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Elizabeth Q., mother of Kayla C., seeks writ review of the juvenile court order dated December 11, 2006, terminating reunification services and setting a permanency planning hearing for April 2, 2007. She contends the juvenile court failed to offer reasonable reunification services and that it erred in not extending those services up to and beyond 18 months. We conclude that the reunification services were reasonable and that the court did not err in terminating those services.

We review Elizabeths contention that the court failed to offer adequate reunification services for substantial evidence. Each reunification plan must be appropriate to the particular individual and based on the unique facts of that individual. [Citations.] [] In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

On July 19, 2005, a petition was filed alleging that Kayla came within the jurisdiction of the juvenile court because she had suffered or there was a substantial risk that she would suffer serious physical harm or illness. (Welf. & Inst. Code[1],  300, subd. (b).) The petition alleged that Elizabeth has an alcohol abuse problem, which impairs her ability to provide adequate care and supervision for the child. A supporting police report asserted that then three-month-old Kayla had been hospitalized after Elizabeth was discovered at midnight in the parking lot of a shopping mall, intoxicated and vomiting, with Kayla in a stroller. The court sustained the petition and approved a reunification plan. The plan provided, among other things, that Elizabeth complete an outpatient substance abuse treatment program, adhere to program rules and guidelines, attend treatment as required by the program and her substance abuse treatment counselor and follow all recommendations for treatment and after care, and submit to random and on-demand testing as required by the assigned social worker, her primary substance abuse treatment counselor, and the court. She was also required to attend AA meetings weekly or as recommended by her primary substance abuse counselor at her outpatient treatment program.

At a contested 12-month review hearing on December 11, 2006, the court terminated reunification services and scheduled for April 2, 2007 a termination hearing pursuant to section 366.26. Supporting the courts determination that reasonable reunification services had been provided was substantial evidence that Elizabeth had failed to utilize services that were made available to her. On January 30, 2006, the social worker reported to the court that Elizabeth had been consistently late for visits with Kayla and that there were eight dates on which she had failed to attend the outpatient drug treatment program that she had begun on November 15, 2005. The social worker also noted that Elizabeth had not submitted to drug testing at the program as she was required to do. Nevertheless, on March 15, 2006, the court found that reasonable reunification services were being provided and ordered that they be continued. The next review hearing was set for August 16, 2006 and was continued to September 20 and ultimately to December 11, 2006.

In anticipation of that hearing, the social worker filed a report recommending that reunification services be terminated. She reported that Kayla had been placed with her maternal grandmother and was doing well. While she and the children in her care were on vacation from June 14 to July 31, 2006, the grandmother had allowed Elizabeth to stay at her home in Colusa County. This worker agreed that it would be a good opportunity for the mother to attend AA/NA meetings, and to obtain a sponsor. This worker also advised the mother to get into an after care drug treatment program, which would be helpful to her sobriety. However, the mother did not take advantage of her time spent in Williams, CA. Upon the [grandmothers] return from vacation on July 31st, she informed this worker that the mother showed up on her doorsteps at approximately 12 midnight, with alcohol on her breath. Reportedly, the caretaker told the mother to leave, and the mother became verbally abusive, but finally left. According to the caretaker, the neighbors reported that the mother had gotten into a physical and verbal altercation with her sister, while the family was on vacation and that the mother had been drinking the entire time the family was gone. The social worker acknowledged that Elizabeth completed the Tri Cities outpatient drug treatment program . . . in spite of a substantial number of No Show missed meetings and group sessions. However, the report continued that Elizabeth had not participated in an after care drug treatment program, to further address sobriety issues. She still has not obtained a sponsor to be accountable to, nor has she consistently attended AA//NA meetings . . . . The mother has had plenty of time to comply with her case plan, but has not done so. Instead she has made excuses for her negligence. She has had No Show drug and alcohol test results since April, 2006. The report also stated that [t]he mother recently asked this worker to do a referral for drug testing. At that time, this worker reiterated to mother that a referral had been done months ago, and that CFS has been receiving no show reports since April of this year.

The social worker testified that Elizabeth tested positive for alcohol in October 2006, and that she had failed to appear for drug testing in April, May, June, August, September, and October. She has consistently missed tests until the last court period when she started again. And she started going consistently from October on, October and November. Elizabeth had recently re-enrolled in the drug treatment program, but had missed 13 group sessions.

Elizabeth contends that the department failed to make the necessary arrangements for her to receive drug testing for the seven-week period she was living in Colusa County, which she implies was the cause of her excessive substance abuse during that period. In June 2006, Elizabeth had moved to Colusa County to live with her mother because she was being evicted from her home and had nowhere to live. The social worker testified that Elizabeth called her once while she was in Colusa County and wanted information so that they could set up the drug testing. I said, Okay. Make sure you tell them to fax me the information so that we can pay for it . . . . Just call me back with the information. Heres my fax number. Fax me the information and well get you set up. And I didnt hear back from her. Elizabeths account differs. She testified that she found a hospital that would provide drug testing, but the hospital needed a form that she did not have. Although she called the social worker, she did not receive a response until the end of July, till it was too late . . . . She stated that she called her social worker [a]t least four times. . . . And I did actually talk to her twice about it, and I mean she told me no twice because I . . . said they needed some documentation . . . in order for them to test me.

Elizabeth also testified that when she returned from Colusa County she sought drug testing but that the social worker would not return her calls. However, she later testified that she did not know that she needed to be tested because [the social worker] didnt get back to me till August 31. And if . . . I was supposed to be testing, I didnt know anything about it. Elizabeth admitted that she had not been tested before she left for Colusa County. She also admitted that she had drunk alcohol multiple times since June.

Thus, although the record indicates there was a period during which there was no testing referral, the testimony of the social worker provided substantial evidence to support the trial courts finding that reasonable services were provided even though for six weeks there was no testing. The court did not find mother credible in contrast to the social worker, who [it] did find credible. Moreover, the court made clear that [e]ven assuming there was testing, that wouldnt change my decision because [the] mother hadnt taken advantage of the testing before or after until very recently. Shes only recently doing the AAs. She has lots of no-shows for testing. She didnt do her program that well, according to the program. She is not doing that well now. And we know she has had numerous relapses as well. Still further, as the trial court also pointed out, because of various delays and continuances Elizabeth did receive nearly 18 months of services, although services could have been terminated after only six months. In short, the record confirms that Elizabeths failure to make timely progress in achieving the goals of her reunification plan was attributable to shortcomings in her performance and not to a failure by the department to make services available to her.

Disposition

The petition for extraordinary relief is denied on the merits. (See Cal. Const., art. VI,  14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Since the permanency planning hearing is set for April 2, 2007, our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.264(b)(2)(A).)

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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[1] All statutory references are to the Welfare and Institutions Code.