Filed 1/4/18 K.G. v. Superior Court CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


K.G.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055459

(Super. Ct. Nos. 16DP0125,
16DP0126 & 16DP0127)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition and request for stay denied.
Vincent Uberti, under appointment by the Court of Appeal, for Petitioner K.G.
Leon Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Linda O’Neil for the Minors.
* * *
K.G. (mother) seeks extraordinary writ relief (Cal. Rules of Court, rules 8.450 & 8.452) from the juvenile court’s September 13, 2017, order terminating reunification services concerning her children, Nathan (born 2008) and Alexia (born 2010), at the 12-month permanency hearing (Welf. & Inst. Code, § 361.21, subd. (f)(1); all statutory references are to this code unless otherwise noted), and scheduling a section 366.26 selection and implementation hearing for January 11, 2018. Mother contends the court abused its discretion in declining to continue the 12-month review hearing, and challenges the sufficiency of the evidence to support the juvenile court’s findings the children would be at risk if returned to her care. Our review discloses no basis to overturn the court’s orders and therefore we deny the requested relief.
I
FACTS AND PROCEDURAL BACKGROUND
In February 2016, the Orange County Social Services Agency (SSA) filed a noncustody petition alleging the children had suffered, or there was a substantial risk they would suffer serious physical harm or illness resulting from the parents’ failure to protect them adequately, and the parents lacked the ability to provide regular care due to mental illness or substance abuse (§ 300, subd. (b)). The petition and the initial petition report described how police officers arrested mother on December 11, 2015, around 1:00 a.m., for driving under the influence of alcohol or drugs while transporting her children. Officers also found a marijuana pipe in mother’s car. Mother agreed to a safety plan, promising not to keep drug paraphernalia around the children. Less than three weeks later, officers again stopped a car containing mother and the children, driven by mother’s boyfriend, a convicted felon recently discharged from parole. Officers smelled marijuana, and the boyfriend admitted he had a small amount of the drug in the side door pocket, and admitted driving the children about 90 minutes after using the drug. Mother denied using marijuana or that there was any of the substance in the car. The children reported seeing mother and the boyfriend with “green stuff” and a “smoky thing,” which was on mother’s lap when officers pulled them over. Finally, the petition alleged the children’s father, Luis, had a history of substance abuse, including methamphetamine, and a criminal history including domestic violence against mother. The criminal court had issued a protective order to restrict Luis’s contact with mother and the children.
SSA had investigated prior reports of child abuse or neglect, and mother previously had received, but did not complete voluntary family services in 2013, declined voluntary services on the current occasion stating she was too busy, and claimed she did not have a problem. She asserted police reports contained inaccurate information, and she felt harassed by SSA and law enforcement officers. Mother agreed to a second safety plan, and SSA recommended the children remain in her care under specified conditions, including completion of a drug treatment program, participation in parenting classes and other activities, abstention from corporal punishment, appropriate adult supervision for the children at all times, and no contact between the children and mother’s boyfriend.
At the initial petition hearing, mother agreed with SSA’s recommendation and declared she was willing to participate in services. The juvenile court agreed with SSA’s recommendation and ordered the children to remain in mother’s custody under the protective orders recommended by SSA. The court authorized SSA to detain the children if mother violated the orders.
The initial summary prepared for March 2016 jurisdiction hearing reported mother failed to show up for a meeting with the social worker on February 16, 2016, did not respond to telephone messages, e-mails and certified mail, refused to allow the social worker to see the children or permit a home visit, and apparently had not complied with the court’s other protective orders. The children’s school reported concerns regarding unexcused absences and tardiness, and noted mother was accusatory and hostile to school personnel. Mother finally met with a CRISP (conditional release intensive supervision) social worker in late February and had a long and sometimes tearful conversation with him. The social worker stressed mother needed to comply with the court’s orders. Mother allowed the social worker to see the children. The social worker was provided daycare information and encouraged mother to seek a CRISP program. Shortly thereafter, mother missed a drug test on February 29, 2016.
In early March, mother stopped returning the social worker’s phone calls. In an interim report, the social worker recommended detaining the children. As described in a later report, mother admitted striking the father in the face on March 22 in the children’s presence, although she asserted he provoked the assault. She also admitted striking the children in the face with an open hand on occasion. She had not complied with the court’s prior orders concerning services, and was not providing for the children’s educational needs. On March 25, 2016, the court issued a protective custody warrant. When entering the residence to serve the warrant, police officers observed the house was filthy, with “old food and trash all over the house. . .”
SSA placed the children at Orangewood Children and Family Center, initiating an assessment of the maternal grandmother for placement. SSA filed an amended petition and sought a psychological evaluation (Evid. Code, § 730) for mother. The court detained the children after the hearing. On March 31, SSA placed the children with the maternal grandmother in Riverside.
In early April 2016, a maternal aunt reported mother might have a “mental issue.” In a report dated April 26, the social worker noted she had referred mother for counseling, anger management, and parenting classes. Mother had missed all her scheduled drug tests, and had not provided evidence of enrollment in parenting or substance abuse treatment programs. In a May 11th addendum report, the social worker again reported difficulty in communicating with mother, whose phone was either out of service or the voicemail was full. Mother failed to show up or canceled visits with the children. Mother apparently made unfounded allegations of sexual abuse after SSA placed one of her children with a paternal aunt, and was “verbally hostile” toward the aunt in the presence of the child. SSA also reported the children required substantial dental work.
The juvenile court conducted a combined jurisdiction and disposition hearing on the amended petition in May 2016. The court found the allegations of the amended petition to be true and declared the children dependents of the juvenile court. The court ordered reunification services and approved SSA’s amended case plan to include anger management classes, and scheduled a review hearing for November 2016.
In a November 3 status review report, the social worker recommended terminating mother’s reunification services. Mother previously had completed a parenting class, but had not maintained consistent contact with the social worker, was not engaged in services required by the case plan, including counseling, anger management, outpatient substance abuse treatment and testing, had not complied with the visitation plan, and could or would not provide a residence address. During one of her irregular visits, mother read court reports to the children, and caused the children to cry when she yelled at the maternal grandmother. Maternal relatives did not want to monitor visits or “deal with” mother.
At the review hearing on November 3, 2016, which mother did not attend, the parties submitted on SSA’s report and the court continued reunification efforts, but characterized mother’s progress under the case plan as “minimal.” The court scheduled a 12-month review for April 2017, which later was continued to May 15.
In a status review report dated April 19, 2017, the social worker recommended continuing the case to an 18-month review based on mother’s partial compliance with the case plan. Mother had improved her contact and communication with the social worker. She worked and participated in the activities of her church. The report described mother’s supervised visits with the children as consistent and appropriate. Mother had not provided proof of enrollment in outpatient substance abuse treatment and had not been tested for drugs, but appeared to have been attending 12-step meetings. She missed several counseling appointments, although her therapist attributed these to transportation difficulties. Mother acknowledged she had been terminated from her anger management program, claiming the program interfered with her work schedule, and stated she had reenrolled and also was attending a 52-week batterer’s program. The social worker could not verify mother’s residence because mother refused to meet with the social worker at mother’s home.
In a May 15 addendum report, the social worker now recommended terminating mother’s reunification services, explaining mother had not visited her children since March 19. The first week, mother reported she was ill, but did not call or visit after this. Nathan reported he was sad about mother’s failure to visit him. Mother did not respond to the social worker’s calls and e-mails, and missed scheduled appointments. The court again continued the hearing to June 1.
A June 1 addendum report reflected the social worker’s attempts to communicate with mother. They set up a meeting and the social worker arranged visits with the children, one of which occurred on May 27. The “visit went well and the mother and children interacted appropriately.”
A July 6 addendum report reflected mother did not show up or call to cancel a scheduled meeting with the social worker on June 21. She failed to advise the social worker of any progress following the case plan, nor did she provide proof of enrollment, participation, or completion of any services. Mother missed or canceled several visits with the children. The court continued the review hearing to August 24.
In a report dated August 24, the social worker stated mother did not show for a scheduled meeting on July 28. She did not show up for scheduled visits, and the last visit occurred June 11. The mother arrived 25 minutes late for a visit on July 29, and did not show for scheduled visits on July 30, and August 5, 6, 12, and 13. The court again continued the review hearing to September 13.
A September 13 report reflected the social worker met with mother at her place of employment on August 22. Mother stated she was moving and would provide the social worker with her address in two weeks. Mother stated she was in “sober living” and “looking to enroll” in “Mariposa” (presumably a substance abuse program) and counseling. She had been working on decreasing and managing her anger, trying to focus on the positive, and to follow a schedule. But she did not show up for scheduled visits and canceled others. She did visit the children on September 2, which went well, but not the following day because of work. Mother stated she might not make the next visit because of a church event. Mother continued to skip drug tests.
Mother did not show up for the September 13 review hearing even though she previously had signed a promise to appear. The juvenile court denied counsel’s motion to continue the hearing. The parties submitted on SSA’s reports and a stipulation reflecting mother completed anger management, but did not complete the batterer’s program. The court found reasonable services had been offered, but returning the children to their parents would create a substantial risk of detriment to their physical or emotional well-being (§ 366.21, subd. (f)). The court terminated mother’s reunification services, and scheduled a section 366.26 hearing for January 11, 2018. Mother petitioned for writ relief. (Cal. Rules of Court, rules 8.450, 8.452.)
II
DISCUSSION
A. Juvenile Court Did Not Abuse Its Discretion By Denying Mother’s Request to Continue the 12-Month Review Hearing
Mother contends the trial court abused its discretion by denying her motion to continue the 12-month review hearing based on her absence. Counsel asserts, “Mother . . . call[ed] the court clerk earlier in the day. She had also consistently been present at the previous settings of the [12-month review]. Given that [she] had consistently been present and that she had attempted to contact the court on the day of the hearing, it seems probable that a continuance would have allowed Mother’s counsel to get her to court so that a full court hearing could be conducted. Because the court denied counsel’s request for a continuance, Mother was denied the opportunity to have her day in court.”
Section 352 provides, “(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [¶] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.”
Continuances are generally discouraged in dependency cases. (In re Abbigail A. (2016) 1 Cal.5th 83, 95 [juvenile court has authority to grant brief, necessary continuances that are not inconsistent with the child’s best interests, while giving “‘substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements’”].) We review the denial of a continuance for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585; In re Karla C. (2003) 113 Cal.App.4th 166, 180 [reversal required only when decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice].)
The record reflects mother had actual notice of the hearing. On August 24, mother signed a promise to appear in court for the scheduled September 13 hearing. The juvenile court noted mother phoned into court on the morning of September 13, and hung up on the clerk, who had put her on hold to contact mother’s attorney. The record reflects mother had a pattern of failing to communicate with social workers, and of missing appointments and visits. Counsel offered no explanation for mother’s absence, or any prediction when she might be available. As SSA notes, the 12-month review already had been continued several times, and nothing suggested further delay would serve the children’s interests. In short, mother did not provide good cause to continue the matter. The court did not abuse its discretion in denying mother’s motion for continuance.
B. Substantial Evidence Supports the Juvenile Court’s Finding Returning the Children to Mother Would Create a Substantial Risk of Detriment
Mother also challenges the sufficiency of the evidence to support the juvenile court’s finding that returning the children to mother would pose a substantial risk of physical and emotional harm. She asserts, “Through stipulated testimony, evidence was offered at the [12-month review] hearing that Mother had completed an anger management program and that she had partially completed a batterer’s treatment program. Her participation in these programs is evidence that she had addressed at least some of the issues that brought the case before the court . . . . She had also completed a parenting class, which is evidence that she addressed problems relating to general parenting. [¶] More importantly, Mother had been visiting with the children and the visits went well. The question at [the hearing was] whether the minors would be at risk if returned to their parent. Given that Mother had no problem taking care of the minors during visits, there was little evidence to support the conclusion that she still posed a risk to them.”
Section 366.21 provides the juvenile court shall return a child to parental custody at the 12-month review hearing “unless the court finds, by a preponderance of the evidence, that the return of 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. (f)).) Failure to participate regularly and make substantive progress in the case plan constitutes prima facie evidence of detriment. (Ibid.)
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.) Evidence that is reasonable, credible, and of solid value satisfies the substantial evidence standard. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Determinations of the credibility of witnesses and resolutions of conflicts in the evidence are for the juvenile court to resolve; we do not revisit these matters on review. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) We must draw all inferences in support of the juvenile court’s findings and view the record in the light most favorable to the court’s orders. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.) Consequently, 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.)
Substantial evidence supports the juvenile court’s finding of detriment. The record amply demonstrates mother failed to participate regularly and make substantive progress in the case plan, which was prima facie evidence of detriment. Mother consistently failed to submit to drug testing or enroll in substance abuse treatment. She failed to show up for meetings with the social worker and did not respond to telephone messages and other attempts at communication. She skipped and canceled visits with the children, and continued to do so leading up to the 12-month review. She refused to allow the social worker to inspect her home. When the children were in her care, mother did not make sure the children regularly attended school. The children’s need for extensive dental work after their removal from mother’s care demonstrated she neglected their hygiene and dental health.
Mother also made unfounded allegations of sexual abuse. She displayed untoward hostility toward school staff, the caretaker-maternal grandmother, paternal relatives, and social workers, demonstrating a problem not likely to be mitigated by attending a few anger management sessions. Mother demonstrated a lack of judgment and violated court orders by reading court reports to the children and allowing E.Z. to have contact with the children outside court-ordered monitored or supervised visitation. Finally, although visitation monitors described mother as consistent and appropriate during her infrequent visits, this was in a supervised setting with the children removed from her care. In sum, mother’s partial compliance with her case plan, while positive, did not address her substance abuse issues as it related to her negligent care of her children, her inappropriate physical discipline, and her domestic violence in the children’s presence. Her inconsistent visits with the children made it impossible to determine whether she could safely provide day-to-day care in light of her past neglect. Substantial evidence supports the court’s finding return of the children to mother would create a substantial risk of detriment to their physical or emotional well-being.
C. Substantial Evidence Supports the Juvenile Court’s Decision Not to Extend the Reunification Period
Finally, mother complains the juvenile court erred by declining to extend the reunification period to an 18-month review, which the parties calculated as an additional 12-17 days. Mother states she “had completed a parenting class and an anger management program, and was working on enrolling in a substance abuse treatment program. She had also participated in some counseling sessions with good feedback. Given this level of participation in her case plan, Mother could have demonstrated to the court, in the time between the twelve and eighteen month reviews, that she had addressed the problems that brought the case before the court. Furthermore, Mother could have also been present in court for the eighteen month review and testified in such a way that convinced the court she had addressed the issues that caused the dependency case to happen in the first place.”
Section 366.21, subdivision (g), provides if the maximum time for court-ordered services has not expired (see § 361.5, subd. (a)), and the child is not returned to the custody of the parent at the 12-month review, the court “shall . . . [c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian,” but “only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: [¶] (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.” (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024 [substantial evidence must support a finding of no substantial probability of return within an extended service period].)
The record amply supports findings mother did not “consistently and regularly” contact and visit the children, she had not made significant progress in resolving the problems that led to removal, she had not demonstrated the capacity and ability to complete the objectives of her treatment plan, and to provide for the child’s safety, protection, physical and emotional well-being, and special needs. The juvenile court did not err in concluding there was not a substantial probability the children would be returned to mother’s physical custody and safely maintained in her home within the short time remaining.
 
III
DISPOSITION
The petition seeking extraordinary relief from the juvenile court’s orders terminating reunification services and setting a section 366.26 selection and implementation hearing for January 11, 2018, is denied, as is the request for a stay of that hearing.



ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.