Kristina W. v. Superior Court

Filed 5/8/06  Kristina W. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            ORIGINAL PROCEEDINGS; petition for extraordinary writ review.  Nancy C. Staggs, Temporary Judge.  (Pursuant to Cal. Const., art. VI, §  21.)

Kristina W., in pro. per., for Petitioner.

            No appearance for Respondent.

            David A. Prentice, County Counsel, and David L. Herman, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1]  We will deny the petition.

STATEMENT OF THE CASE AND FACTS

            Petitioner is the mother of two daughters, S. and K., the subjects of this writ petition.  Petitioner has a history of drug addiction and child neglect.  In the fall of 2004, petitioner, her boyfriend Sam and then four-year-old S. and three-year-old K. left petitioner's home state of Nebraska and drove to the home of Sam's mother in Madera County.  At the time, Sam was on parole and petitioner was receiving voluntary maintenance services and had agreed to enter inpatient drug treatment in Nebraska.  She also had several warrants out for her arrest in Nebraska.  

            In November 2004, the Madera County Department of Public Welfare (department) received a report that petitioner and Sam were abusing drugs and that petitioner was neglecting the children.  The responding caseworker found the family living in a van parked outside Sam's mother's home.  The van was cluttered and dirty and smelled of urine.  Petitioner admitted that she and Sam were heroin addicts and that he beat her.

            The department took the children into protective custody and placed them in foster care.  The juvenile court ordered them detained pursuant to a dependency petition and adjudged them dependents of the court.  (§  300, subd. (b).) 

            On January 7, 2005, the court conducted an uncontested dispositional hearing.  The court assumed dependency jurisdiction and ordered petitioner to complete programs in parenting and domestic violence, complete a psychological evaluation and a substance abuse assessment, follow any recommended treatment and submit to random drug testing.  The court set the six-month review hearing for July 6, 2005.

            The day after the dispositional hearing, petitioner returned to Nebraska.  She explained to the caseworker that she wanted to reunify with her daughters but she first wanted to take care of her outstanding warrants and enter inpatient drug treatment.  She believed she had a better chance of recovering in Nebraska where she would have the support of her family and she did not trust herself to stay away from Sam who was incarcerated in California and due to be released within several weeks.  Petitioner hoped the children would be placed with her brother and his wife in Nebraska and that she would be able to reunify with the children there.  If not, she planned to return to Madera County.

            Back in Nebraska, petitioner was taken into custody and released on February 24, 2005.  She participated in substance abuse counseling and was testing negative for drugs.  In early April 2005, petitioner returned to Madera County and visited with the children while she was there.  The children were excited to see her and cried when she left.

            While in Madera, petitioner met up with Sam and they returned to Nebraska together.  Petitioner admitted that Sam was in Nebraska but denied knowing his whereabouts. 

            In its six-month status review, the department recommended the court continue petitioner's services for another six months.  The department reported that petitioner's brother and sister-in-law were assessed but not recommended as a placement option.

            On July 15, 2005, the court conducted a continued six-month review hearing and adopted the department's recommendations.  The court set the 12-month review hearing for January 9, 2006.   

            In its 12-month status review, the department reported that petitioner was employed part time, that she completed several self-study programs and that she began participating in an intensive outpatient substance abuse program in November 2005.  She also continued to test negative for drugs.  However, she had not completed domestic violence counseling and continued her abusive relationship with Sam following her return to Nebraska in April 2005.  As a result of their violence, Sam was arrested for domestic violence and transferred to state prison in California.  The department reported petitioner also had legal problems in California.  She had an outstanding warrant in Madera County for a felony charge of child endangerment.

            Petitioner also completed a psychological evaluation and was diagnosed with alcohol and drug dependence as well several psychological disorders.  The psychologist recommended that the court require petitioner to complete her case plan and demonstrate stability before returning the children to her custody.  The psychologist specifically recommended that petitioner maintain a stable job for a minimum of one year, not incur any criminal offenses for one year and maintain a stable and safe home for at least six months before regaining custody of the children. 

            The department also reported the children were adoptable and the department was evaluating petitioner's relatives for either legal guardianship or adoption.  The department recommended the court terminate reunification services and set the matter for permanency planning.

            Petitioner contested the department's recommendation but did not personally appear at the contested 12-month review hearing on February 3, 2006.  After the parties submitted the matter, the court found it would be detrimental to return the children to petitioner's custody.  The court also found that petitioner was provided reasonable services but failed to make significant progress in resolving the problems requiring the children's removal.  Consequently, the court terminated petitioner's reunification services and set a section 366.26 hearing for June 5, 2006.

DISCUSSION

            Petitioner claims the juvenile court erred in not allowing her to demonstrate that she complied with her case plan.  Therefore, she attached various certificates of completion, letters and handwritten notes to her petition and asks this court to assess her compliance.  However, what petitioner asks is beyond our scope as a reviewing court.  Our review is confined to the evidence that was before the juvenile court for consideration.  (In re Zeth Z. (2003) 31 Cal.4th 396, 405.)  Further, we cannot reweigh or express an independent judgment on the evidence.  (In re Laura F. (1983) 33 Cal.3d 826, 833.)

            In this case, most of the documentation petitioner included with her writ petition was considered by the juvenile court.  Therefore, we will not reweigh that evidence.  The other documentation was not before the juvenile court.  Consequently, we cannot review it.

            Further, having reviewed the appellate record, we find no evidence that petitioner was denied her opportunity to demonstrate her compliance.  She was represented by an attorney throughout the proceedings.  She was also provided notice of the hearings and given the opportunity to appear and present her position.  In addition, she requested and was granted a contested hearing on the department's recommendation to terminate her services.  However, petitioner failed to appear. 

Furthermore, at this stage of the proceedings, the court properly terminated reunification services and set the section 366.26 hearing.  In light of the reasonable services offered petitioner, the law required the court to act as it did unless petitioner could show a substantial probability S. and K. would be returned to her custody and safely maintained in the home within another six months (§  366.21, subd. (g)(1).)  A substantial probability of return exists when the parent regularly visits the child, makes significant progress in resolving the problem requiring removal of the child, and demonstrates the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection and well-being.  (Ibid.) 

Here, the record is devoid of any evidence favoring a substantial probability of return.  Petitioner had not addressed her propensity for abusive relationships and there was evidence that she continued her involvement with Sam.  Further, she had yet to achieve and sustain a level of stability that would allow her to properly parent her children.  Given petitioner's history of severe child neglect and the depth of deprivation to which she exposed her children, there was no reason to believe that petitioner could complete her case plan and provide for her children's safety and well-being after another six months of services.  We find no error. 

              Notwithstanding our conclusion that the juvenile court did not err in this case, nothing precludes petitioner from filing a section 388 petition to modify the juvenile court's order terminating reunification services.^[2]  Further, to the extent petitioner seeks reconsideration of the department's decision not to place S. and K. with her brother and his wife, she must raise that issue before the juvenile court.

DISPOSITION

The petition for extraordinary writ is denied.  This opinion is final forthwith as to this court.

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^*Before Levy, Acting P.J., Cornell, J., and Dawson, J.

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

^[2]             Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.