Gene L. v. Superior Court

Filed 3/13/07 Gene L. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Juvenile Court Referee. Petition denied.

Gene L., the father of Alissa L., seeks extraordinary writ relief (Welf. & Inst. Code,  366.26, subd. (l);^[1]Cal. Rules of Court, rule 8.452); he challenges the juvenile court order terminating reunification services after 18 months and setting a section 366.26 hearing. Gene contends there was insufficient evidence that returning Alissa to his custody would create a substantial risk of detriment to her.

We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. We review the petition on its merits and deny it.

FACTS

On May 3, 2005, police arrested Alice R., Alissa's mother,^[2]for being under the influence of drugs. Police found drug paraphernalia and a gun in the home, which was filthy. Police took Alissa, then seven years old, into protective custody and brought her to Polinsky Children's Center. Alissa told authorities she had seen her parents use drugs. Alice and Gene had separated when Alissa was seven months old. Alissa lived with Alice and did not often see Gene.

Gene told the social worker he had a history of substance abuse and had used methamphetamine on May 1.^[3] Gene also said he visited Alissa regularly, but could not take care of her because Alice had falsely accused him of domestic violence and he probably was going to jail soon on an unrelated criminal charge.

On May 5 Agency filed a dependency petition on behalf of Alissa, alleging she was at substantial risk of harm because Alice's substance abuse made her unable to provide regular care for Alissa, and Gene had failed to protect and supervise Alissa. ( 300, subd. (b).)

Gene did not attend the May 6 detention hearing. The court granted both parents supervised visitation and ordered them to undergo evaluations by the Substance Abuse Recovery Management System (SARMS) program. Alissa was detained in the home of her maternal uncle and aunt.

On June 7 Gene began serving a jail sentence. On June 15 the court sustained the allegations of the petition.

On July 5 at the dispositional hearing, the court declared Alissa a dependent child, removed her from Alice's custody, and placed her with a relative. The court ordered the parents to comply with their case plans. Gene's case plan required him to undergo a psychological evaluation and individual therapy, complete a parenting course, and participate in substance abuse treatment and testing.

On August 3 Gene was released from jail and entered Tradition One, an alcohol and drug recovery home. On August 24 Gene attended his intake session at SARMS. On September 2 he disclosed to SARMS that he had drunk alcohol. On September 19 Gene was asked to leave the Tradition One recovery home after he did not return by curfew. Gene told the social worker that he moved into the Veterans of America shelter and was on the waiting list for The Way Back, another recovery home. Gene did not contact the social worker or SARMS for a month. On October 25 Gene contacted the social worker and reported he was now married and his new wife was pregnant. On the following day, Gene contacted SARMS. On December 2 Gene told the social worker he expected to be admitted to The Way Back recovery home within a few weeks. After October 26 Gene remained in compliance with SARMS.

The psychologist who evaluated Gene reported that Gene "is impulsive and immature and tends to seek immediate gratification of his wishes, often without apparent concern for the consequences." The psychologist reported the prognosis was poor for Gene to improve with treatment, noting that Gene "blames others for his problems, he has little or no motivation to change and is likely to participate in treatment only to avoid or reduce external pressure."

On December 15 at the six-month review hearing, the court found neither parent had made substantive progress with the provisions of his or her case plan. The court ordered six more months of services.

In January 2006 Gene began individual therapy. In February, Agency granted him unsupervised visits with Alissa. In April, Gene completed a parenting course. By June, Agency had authorized eight hours of unsupervised visits per week.

SARMS reported that Gene was in good compliance, and, with his good progress, was eligible for housing assistance from SARMS. Gene's SARMS counselor remarked: "I think he is going to be one of our success stories."

On June 15 at the 12-month review hearing, the court found Gene had made substantive progress with the provisions of his case plan. The court ordered six more months of services for him.

For the upcoming 18-month review hearing on November 1, Agency recommended that Alissa be placed with Gene and six months of family maintenance services be offered to him. Gene's therapist reported Gene had shown marked improvement, completed his treatment goals, and there was no further need for therapy. The social worker reported SARMS suspected that in October Gene might have relapsed and asked him to test three times a week to alleviate suspicions. Gene replied he would have to quit his job as a delivery driver, but he was willing to do so. Within a week, Gene was hired by a moving company; the workday in the new job ended by 5:00 p.m. every day. The social worker reported that Gene had completed all components of his case plan.

On November 1 counsel for Alissa asked for a trial on Agency's recommendation. The court, having learned that in October Gene had a test result with an "8.4 dilution," said that it wanted "an explanation for that dilution and an honest one."

Agency changed its recommendation and asked the court to terminate services and set a section 366.26 hearing. The social worker reported that after the November 1 hearing, Gene met with his pastor and then went to Agency's office. Gene admitted to the social worker that he had lied about not using; he had used on the weekend of October 13.^[4] Gene explained that he was with "old" friends and "it was just there." Afterward Gene knew it was mistake, but he lied about using drugs because the relapse was so close to the hearing date and he did not want to lessen his chances of reunifying with Alissa.

On December 12 at the contested hearing, Gene testified that when he relapsed he had stopped attending church and fellowship. Gene explained he thought he could get away with using drugs because he had abstained for more than a year. In anticipation of a drug test, Gene drank a lot of water to conceal the methamphetamine in his urine. Gene felt guilty and was ashamed afterward. Gene testified that he admitted the relapse to the social worker and the SARMS worker after hearing the judge say at the November 1 hearing that he did want to hear any "'B.S.'" and wanted the truth.

Gene testified that he started smoking marijuana when he was 16 years old and continued for about four years. He started using methamphetamine when he was 22 years old and continued for approximately four and one-half years. "When I was into my addiction I used it almost every day," Gene testified. The daily use took place over a period of at least two years.

Gene testified he would not use drugs again because he had learned his lesson. Because he had become active in his church again and God was in his life, Gene was adamant he will never relapse. "I will not relapse with God in my life," Gene testified. Before his relapse, Gene said he was not serious about his commitment to God and the church.

The court found returning Alissa to Gene would be detrimental to her,^[5]terminated reunification services and set a section 366.26 hearing.

DISCUSSION

Gene contends the juvenile court should have ordered Alissa returned to his custody because he had substantially completed his case plan and there would be no detriment to her.

The juvenile court must return a dependent child to the custody of the parent at the 18-month review hearing "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . In making its determination, the court shall review and consider the social worker's report and recommendations and . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided." ( 366.22, subd. (a).) However, "the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)

In explaining the purpose of the section 366.22 hearing, it has been noted: "[T]he Legislature has determined a child's need for stability and security with a definitive time frame becomes paramount. The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) Mandatory reunification services are limited to no more than 18 months. ( 361.5, subd. (a).)

Considering the juvenile court's wide discretion in ruling at the 18-month review hearing, appellate courts will uphold the court's finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) To determine whether there is substantial evidence to support the court's findings, we review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Even though Gene made great strides in attempting to turn his life around and made substantive progress in his treatment programs, there was substantial evidence that returning Alissa to Gene would be detrimental to her well-being. After 18 months of services and one year of sobriety, Gene ingested methamphetamine, lied about it, and tried to conceal it by diluting his test sample. The significance of this relapse is underlined by Gene's long-standing and serious substance abuse history before the dependency proceedings, Gene had used methamphetamine for four years; during at least two of those years, Gene ingested methamphetamine on a daily basis. Moreover, Gene was convinced he would not relapse again because he had found God. Gene believe the key to his sobriety was keeping "God in my life," and that traditional principles of drug rehabilitation, such as 12-step programs, did not apply to him. On this record, there is substantial evidence Gene had not resolved his substance abuse problem, which continued to pose a risk of detriment to Alissa.

"[A] necessary condition for the safety, protection and physical and emotional well-being of the child" is a home "free from the negative effects of substance abuse." ( 300.2.) A child is at risk of harm when there is ongoing alcohol or drug abuse in the home. (See In re Ashley G. (1998) 205 Cal.App.3d 1235, 1242-1243.)

In addition to the protective issues raised by methamphetamine abuse, Alissa's emotional well-being was at risk as well. Alissa was aware Gene had a drug problem she saw him using a pipe to ingest drugs. Further, during the first seven years of her life, Alissa had limited contact with Gene because of his substance abuse. Considering these facts, the court could reasonably conclude Gene's relapse on the doorstep of reunification would adversely affect Alissa's emotional well-being.

We acknowledge, as did the juvenile court, that Gene made substantive progress in his case plan during the year before the 18-month review hearing. However, this progress does not mandate returning Alissa to his custody. Even completion of the reunification plan does not guarantee the child can safely be returned to the parent. The court must still determine whether returning the child will create a substantial risk of detriment. (In re Brian R. (1991) 2 Cal.App.4th 904, 917-918.) The court must evaluate not only whether the parent is currently capable of providing an adequate home for the child, but whether he or she is likely to be able to maintain a stable, sober and noncriminal lifestyle for the remainder of the child's childhood. (Id. at p. 918.) Gene had been sober for only about a year, after four years of methamphetamine addiction; he also had a history of criminal behavior. Although Gene was adamant he would not relapse again because of his commitment to God, there was no evidence he would be able to maintain his sobriety without the constant support of an intensive treatment program or without the constant threat of immediate incarceration resulting from a failed drug test. Considering Gene's long-standing drug problem, the evidence supports the conclusion there was a substantial possibility Gene would relapse.

Gene argues that because he had completed all components of his case plan and made substantive progress, the court erred by not returning Alissa to his custody and setting the section 366.26 hearing. Gene points out that section 366.22, subdivision (a), provides: "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." Thus, Gene maintains his completion of his case plan and his substantive progress rendered the court's finding of detriment erroneous.

Although failure to comply with a reunification services plan supports a detriment finding, it does not logically follow that compliance with a reunification services plan precludes a detriment finding. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 704.) "Compliance with the reunification plan is certainly a pertinent consideration at the section 366.22 hearing; however, it is not the sole concern before the dependency court judge." (Ibid.) Although a parent's compliance with his or her case plan must be considered by the juvenile court, it is only one factor in determining whether returning the child presents a risk of detriment. (In re Joseph B., supra, 42 Cal.App.4th at p. 899.) "By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, [section] 366.22 focus[es] on the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency ( 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well being of the child." (Ibid.)

Gene's reliance on Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.) and David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.) is misplaced. In Rita L., the mother, who had an extensive history of substance abuse but was doing well with her case plan, had been sober until she took a Tylenol with Codeine tablet prescribed for her daughter to treat a headache. (Rita L., supra, at pp. 498, 499, 501.) The mother immediately told the drug-testing center, her Alcoholics Anonymous sponsor and the social worker that she took the tablet. (Id. at p. 501.) Disbelieving the mother's relapse was unintentional, the juvenile court terminated reunification services and set a section 366.26 hearing. (Rita L., supra, at pp. 502-504.) The Court of Appeal granted the mother's writ petition, observing that not all relapses are equal and not all dirty tests are the same. (Id. at pp. 502-504.) The Court of Appeal said the mother's "ingestion of a single prescription [painkiller] to combat a headache in the absence of any prior listing of prescription drug abuse was simply insufficient to justify the court's conclusion that [the child] could not be safely returned to her custody." (Id. at p. 506.)

Notwithstanding Gene's arguments to the contrary, the mother's relapse in Rita L. is significantly different from Gene's relapse. The mother in Rita L. did not use her drug of choice but instead took a prescription pain fighter, "slept off her headache, resumed her life going to work, reporting her mistake, and then drug testing the next day." (Rita L., supra, 128 Cal.App.4th at p. 506.) In contrast, Gene knowingly used his drug of choice methamphetamine because he believe he "could get away with doing this" and did not disclose his relapse. Gene tried to conceal the relapse by drinking a large amount of water to lessen the chance that his relapse would be revealed by testing. For the better part of a month, Gene denied he had relapsed. It was only after being confronted by the court on November 1 that Gene admitted his relapse.

David B. is also distinguishable from the instant case. (David B., supra, 123 Cal.App.4th 768.) In that case, the juvenile court did not return the child to the father because the court was concerned that the father was planning to continue to live with his sister and brother-in-law, who had unresolved drug, alcohol and domestic violence problems. (Id. at p. 787.) Although the juvenile court voiced other concerns, none of them had anything to do with the substance abuse problems of the father, who had been sober for 20 months when the child welfare agency contacted him about the dependency case. (Id. at pp. 775, 787.)^[6] The Court of Appeal granted the father's petition, finding the brother-in-law's potential danger to the child did not necessarily demonstrate the child could not reside in the same home with the father. (Id. at p. 773.) The Court of Appeal said the juvenile court should have considered less drastic alternatives. (Ibid.)

Although the record here contains evidence favorable to Gene, substantial evidence supports the juvenile court's finding of detriment. Although we acknowledge that Gene's efforts are commendable, his relapse was not insignificant to Alissa's well-being. Therefore, the juvenile court was required to follow the legislative mandate that dependent children wait no more than 18 months for their parents to reunify with them before moving to the permanent planning stage. ( 366.22.) If Gene continues his sobriety, he has the opportunity to present changed circumstances to the juvenile court by filing a petition under section 388.

DISPOSITION

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

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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

^[2] Alice is not a party to this writ proceeding.

^[3] Gene, 25 years old when the dependency case began, also said he began smoking marijuana when he was 18 years old and began using methamphetamine when he was 22 years old. Gene told the social worker he used methamphetamine twice a week. Gene admitted he had a drug problem and needed drug treatment.

^[4] At trial, Gene testified that he believed he relapsed on October 9.

^[5] Among its other findings, the court found reasonable services had been provided and Gene had made substantive progress with the provisions of his case plan. The judicial officer also noted for the record that he gave Gene "a lot of credit for at least admitting it when we caught you . . . . I have people getting caught all the time and [they] lie right back to me. At least you were man enough to say, I did this. That went a long way with me."

^[6] The father in David B. voluntarily submitted to drug testing several times a week and never submitted a positive test. (David B., supra, 123 Cal.App.4th at p. 775.)