Gloria R. v. Superior Court
Filed 1/29/07 Gloria R. v. Superior Court CA4/1
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GLORIA R., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D049639 (Super. Ct. No. EJ2580C-E) |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Referee. Petition denied. Request for stay denied.
Gloria R. seeks review of juvenile court orders terminating her reunification services and setting a Welfare and Institutions Code section 366.26[1]hearing regarding her children, Felicity D., Lorenzo D., Jr. (Lorenzo, Jr.), and Michael D. In her petition for extraordinary writ relief ( 366.26, subd (l); Cal. Rules of Court, rule 8.452), Gloria contends the court erred by not extending services for another six months. She argues there was no showing that returning the children to her posed a substantial risk of detriment and there was a substantial probability they could be returned by the 18-month date.
We issued an order to show cause, the San Diego County Health and Human Services Agency (the Agency) responded and both parties waived oral argument. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 2005, the Agency petitioned on behalf of two-year-old Felicity and one-year-old Lorenzo, Jr., under section 300, subdivisions (b), (g) and (j), alleging a marijuana pipe and marijuana residue were found in the family residence within reach of the children; the whereabouts of the parents were unknown; and the children's father, Lorenzo D., Sr., (Lorenzo), taped together the wrists to the ankles of the children's half sibling, five-year-old Brooklyn R., and left her on a bed. On April 27 police had gone to the motel room where the family was living and found Lorenzo there with Felicity, Lorenzo, Jr., and another sibling, four-year-old James R. A marijuana pipe containing marijuana was in the room. The children were not taken into protective custody at that time. On April 28 Brooklyn was detained after Lorenzo taped her wrists and ankles together and she fell off a bed and hurt her cheek. Police went to the motel, but the family had left. Brooklyn and James were taken into protective custody.[2] The court sustained the petitions and ordered Lorenzo, Jr., and Felicity detained when they were located.
In July Gloria gave birth at home to Michael. She and Michael were taken to a hospital, where they both tested positive for methamphetamine. When authorities learned where Felicity and Lorenzo, Jr., were staying, these children were taken in protective custody and placed with a relative. Michael was detained in a licensed foster home.
Gloria reported she began using marijuana at age 14, used the drug until she was 25, stopped for three years and then, resumed its use when she met Lorenzo.
On September 19, 2005, the court sustained Michael's petition and declared him a dependent in foster care.[3] Gloria was ordered to comply with her case plan, including counseling, parenting classes, a psychological evaluation and the Substance Abuse Recovery Management System (SARMS). She tested positive for methamphetamine on September 23, but then began participating in her case plan, including therapy, parenting classes, substance abuse treatment and consistent visits with the children. Family members reported she supported her family through larceny and identity theft. On December 2, she was convicted of unauthorized use of personal information and ordered incarcerated for 180 days. The juvenile court terminated her from the SARMS program and ordered reasonable visitation during her incarceration.
The psychologist who conducted a psychological evaluation of Gloria reported that during the evaluation Gloria attempted to portray herself in an artificially positive light, and testing suggested she is impulsive, seeks excitement, sometimes lacks conscience and is a skillful manipulator, who would lie to stay out of trouble. The psychologist observed that on the date of the evaluation she had been drug free for only 46 days. The psychologist recommended reunification proceed slowly.
On February 6, 2006, the Agency filed supplemental petitions on behalf of the children, alleging the children said their relative caregiver had hit James in the face and the caregiver accused Felicity of being sexually inappropriate. The children were detained in foster care. At the six-month review hearing on March 1, following Gloria's release, the court re-ordered her to participate in the SARMS program.
In an addendum report dated April 17, 2006, the social worker reported Gloria was participating in SARMS requirements and therapy, was visiting the children and had completed a 58-hour parenting class while incarcerated. However, the social worker opined further services would not be in the children's best interests because 11 months after Brooklyn and James were detained, the parents were not ready to reunify with the children. Subsequently, Gloria continued to participate in SARMS and have clean drug tests and visit with the children. She stopped therapy and then changed to a new therapist.
The 12-month hearing was held on August 29, September 29 and October 13, 2006. The social worker testified Felicity, Lorenzo, Jr., and Michael were doing well in a foster home, where they had lived for six months. Gloria and Lorenzo had visits with them there. Visits remained supervised because of Gloria's inconsistency with therapy, her history and her continued relationship with Lorenzo. The social worker reported Gloria stopped therapy in March or April and did not start seeing a new therapist until August. The social worker expressed concern that Gloria continued to associate with Lorenzo, was very supportive of him and denied he had meant to hurt Brooklyn. He had tested positive for drugs in May 2006, and, to the social worker's knowledge, was not drug testing.
Gloria testified she had completed the CRASH program and was in aftercare. She said she was working with a Narcotics Anonymous sponsor and a support group and had clean drug tests. She had attended eight therapy sessions after her release from custody in February 2006, two with her former therapist and six with a new therapist. She said Lorenzo had not intentionally hurt Brooklyn and she blamed herself because she had not been a better mother. She said she loved Lorenzo, but knew that to keep herself and her children safe she had to stay away from him because he was not in recovery.
The court found returning Felicity, Lorenzo, Jr., and Michael to the parents would create a substantial risk of detriment and there was not a substantial probability they could be returned by the 18-month date. It terminated services and set a section 366.26 hearing.
DISCUSSION
Gloria contends the court erred by not extending services for an additional six months. She argues the Agency did not prove that returning the children to her care would pose a substantial risk of detriment and claims there was a substantial probability the children could be returned by the 18-month date.
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.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) 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.)
Under section 366.21, subdivision (g)(1), a court may continue a case to the 18‑month date only if there is a substantial probability that the child will be returned to the parent's physical custody and safely maintained in the home by that time. In considering whether to extend the case for 18 months the court must make all of the following three findings:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.
"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.
"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well being, and special needs." ( 366.21, subd. (g)(1).)
Substantial evidence supports the court's findings that returning the children to Gloria's care would pose a substantial risk of detriment and there was not a substantial probability they could be returned to her care by the 18-month date.[4] Although Gloria maintained regular visitation and contact with the children and participated regularly in services, during the many months of the children's dependencies, she continued to be in a relationship with Lorenzo. She lived with him after her release from jail in February 2006 and continued to live with him for several months after he tested positive for drug use in May. She supported him, and, at the hearing, said he had made a mistake, but did not intentionally hurt Brooklyn. The court noted she had not moved to a sober living apartment without Lorenzo until just a short time before the hearing. As the court observed, Gloria did not appear to understand codependency and did not show that she was no longer a codependent with Lorenzo. She thus placed her own sobriety at risk.
Also, Gloria's counselor at CRASH reported in September and October 2006 that Gloria had enrolled in a six-month outpatient treatment program plus three additional months of aftercare. It was unclear when she would complete the program. Substantial evidence supports the court's finding Gloria did not show that she had made significant progress in resolving the problems that led to the children's removal and that there was a substantial probability the children could be returned safely to her care by the 18-month date.
DISPOSITION
The petition is denied. The request for stay is denied.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] James and Brooklyn are not part of this writ petition.
[3] Michael's petition under section 300, subdivisions (b) and (j) was based on the parents' substance abuse and Lorenzo's abuse of Brooklyn.
[4] Although the court ordered Felicity and Lorenzo, Jr., detained on May 3, 2005, they were not physically removed from the parents' custody until they were located at the time of Michael's birth in July. The court's decision of October 13, 2006, to terminate services was 15 months since the removal of the children in July 2005. ( 366.22, subd. (a).)
