Latoya D. v. Sup. Ct.

Filed 4/5/07 Latoya D. v. Sup. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Latoya D. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, to challenge the juvenile courts order terminating reunifications services for her children, J.D. and Jay D., and setting a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] The court found it would be detrimental to return the children to mother and it also found that she was provided reasonable services but failed to make significant progress in resolving the problems requiring the childrens removal. We conclude substantial evidence supported the lower courts ruling and deny mothers petition for an extraordinary writ.

BACKGROUND

On May 16, 2006, the Contra Costa County Bureau of Children and Family Services Bureau (Bureau) filed a petition pursuant to section 300, seeking to have the 18-month-old fraternal twins, J.D. and Jay D., declared persons coming under section 300 and declared dependent children of the juvenile court. The amended petition alleged that, under section 300, subdivision (b)(1) and (2), mother had a history of substance abuse and of engaging in domestic violence. On June 20, 2006, mother pleaded no contest to the amended petition, and the case was set for a disposition hearing.

In its disposition report dated July 11, 2006, the social worker for the bureau recommended that mother be offered reunification services. The report stated that the bureau had 17 previous referrals regarding mothers other children, although only three of these referrals were substantiated on behalf of J.D. and Jay D. In November of 2004, mother was offered a voluntary family maintenance plan, but mother failed the plan as she failed to follow through with drug testing, counseling, and parenting classes.

The disposition report further asserted that mother had continued to test positive for cocaine, alcohol, and marijuana. The report stated: [Mother] also engaged in domestic violence with three different individuals in the last year. The domestic violence incidents involved verbal abuse and mother reported sexual abuse. Mother, however, remained involved with these men where there was domestic violence.

The disposition report declared that the fraternal twins, J.D. and Jay D., did not appear to be on target developmentally. In addition to making very few utterances when in the presence of other people[, the twins] also display very disturbing behavior[,] which includes taking feces out of their diaper and smearing it on their body including their face, on the walls, and on furniture. The children did not speak, but grunted when they spotted food or liquids. They also had very flat affect.

The disposition report indicated that the children would not be safe in mothers home. Mother was continuing to see the men who had abused her. Further, she refused to permit the bureau to enter her home and it could not determine without her cooperation the level of risk to the children in the home.

According to the disposition report, the court had ordered weekly visitation for mother and her children and the social worker supervised this visitation. Mother participated in the first scheduled visit, which lasted about one hour. When the children saw their mother, they just stared at her and neither gestured or made any utterances to her. Mother did not participate in any other visits and provided numerous reasons for not participating.

In its final assessment, the disposition report indicated that mother had not followed through with any of the services that the bureau had requested of her. This included court ordered weekly visitation, proof of filing restraining orders against three of her abusers, drug testing, parenting classes, and [Alcoholics Anonymous/Narcotics Anonymous] meetings. The social worker visited mother at her home on June 5, 2006, and mother appeared disheveled and under the influence of drugs. Mother refused to permit the social worker to enter the home and the social worker left when mother cursed and threatened her. On June 8, 2006, mother was hospitalized due to her volatile behavior. Hospital staff reported that mother tested positive for cocaine and alcohol. On June 27, 2006, mother again tested positive for marijuana.

The bureau recommended that the children be adjudged dependents of the court and that the court find by clear and convincing evidence that there was a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children if they were returned home and there were no reasonable means by which the childrens physical health could be protected without removing the children from their mothers physical custody. On July 11, 2006, the juvenile court followed the bureaus recommendation and set the matter for a six-month review.

The court held a review hearing on December 19, 2006.^[2] The court suspended mothers visits with the children.

Prior to the contested hearing on February 21, 2007, the social worker for the bureau submitted a memorandum dated February 15, 2007, to the court to provide an update on mother and the twins. The report stated that mother had been in the Orchid Residential Program (Orchid) in Oakland. Orchid is a residential substance abuse treatment program. According to mothers counselor in the program, mother had been an active participant, although mother had been having severe headaches that at times hindered her ability to participate fully in the program. Mother learned that she had to have a cyst removed from the back of her head. Additionally, the counselor told the social worker that she was concerned with the amount of time mother was missing from the program because of her hurry to try and meet the requirements of her case plan. It was unknown at that time whether mother would be able to stay in the program or be able to allocate sufficient time to her treatment program because of the outpatient surgery for her cyst.

While at Orchid, mother attended individual therapy on a weekly basis, participated in parent education twice a month for two hours, and attended 12-step meetings twice weekly. She began attending a program for domestic violence at the end of January 2007.

The children continued to have developmental issues. The children who were 28 months old at the time of the report, were functioning at the level of a nine- and/or 10-month-old child. They continued to have a limited vocabulary and still shoved large amounts of food into their mouths and did not know when to stop eating. Both children now recognized their names and would hug one another when directed to do so. Both were affectionate with their caretaker.

The report noted that mother had lost custody of another set of twins to the childrens father because she had failed to attend the court hearings. One of her sons suffered from severe asthma requiring many hospitalizations, but mother failed to follow her sons treatment plan and denied the seriousness of his condition. This information was of particular significance to the social worker because mother remained in denial of the physical and mental health of Jay D. and J.D.

The memorandum concluded: This social worker is requesting that the mother continue to be denied visits with her children. It is a fact that these children were severely neglected and witnessed a great deal of domestic violence between the mother and her partners. Their negative behaviors, the feces smearing, hurting themselves and each other, the excessive screaming, and tantrums are clear indications that these children were mentally if not physically abused in the past. . . . It also makes this social worker deeply sad that the mother has denied since my first meeting with her in early August 2006 that there is anything wrong with her children. She stated to this social worker that they did not have these problems until they became dependents of the court. This social worker worries about the mothers ability to care for [these] childrens issues if they are returned to her care in the future.

The social worker noted that mother was now finally working on her case plan. However, mother had only attended four of the 52-week sessions in a certified domestic violence program and had not yet received her mental health assessment.

The social worker for the bureau filed her status review report on February 21, 2007. The report stated that the court-ordered plan for mother required her to attend individual therapy, to complete a mental health assessment, to complete a domestic violence program, to complete parenting education, to attend a 12-step program, to complete successfully an outpatient substance abuse program, and to participate in random drug testing. Mother had not complied with any component of her plan. Since the last court date of July 11, 2006, mother had visited with her children only once, on November 15, 2006. During the visit, J.D. clung to the caretaker and would not respond to mother. Jay D. engaged with his mother after a few minutes into the visit, but he responded to her as if she were a stranger, not a parent.

When the social worker discussed with mother the progress of her children, mother would become very defensive and state that the children did not have the problems they [were] experiencing until after they were taken from her. She [stated] repeatedly that she was a good mother. In September 2006, the social worker stopped all phone calls between mother and the foster mother because mother was verbally abusive. Mother denied being verbally abusive, but the social worker was present when the foster parent received one of the abusive calls. Additionally, the social worker learned that mother had been evicted from her apartment because she continued to be drunk and to have domestic violence disputes with men visiting her.

The twins continued to have developmental issues. Both did not speak any words and had difficulty sleeping; they often cried and screamed all night. Both had tantrums and hit each other. Neither child knew when to stop eating or drinking, and both tried to shove large amounts of food into their mouths. They exhibited their wants by reaching for things, crying, and screaming. Both continued to smear feces on themselves, furniture, and walls. They had destroyed two playpens. The childrens behavior had improved from when they were first removed from the home, but they had regressed and their negative behaviors had escalated after their visit with mother on November 15, 2006.

The bureau recommended that reunification services be terminated and that a section 366.26 hearing be set.

The social worker assigned to mothers case, Sophia Webb, testified at the hearing on February 21, 2006. She stated that mother had told her that she did not want to visit her children and that mother had not complied with any part of her case plan until the status review report was written. She further confirmed that the current foster parents were interested in adoption.

Counsel for mother submitted three exhibits. The first exhibit was a letter dated February 21, 2007, from mothers counselor at Orchid. The letter confirmed that mother was at Orchid since December 8, 2006, and that she was in full program compliance, attending and participating in the Orchid program as required. The letter also confirmed mothers weekly attendance of a certified domestic violence class. The second exhibit was a letter dated February 20, 2007, from the social worker providing mother with domestic violence counseling. Mother had started counseling on January 26, 2007, and had participated in five sessions. The social worker opined that mother appeared to be sincerely motivated to make lifestyle changes which will improve her future. [Mother] is able to express her need to set limits in relationships and to take the steps to avoid situations that could lead to domestic violence. The final exhibit submitted by mothers counsel set forth the weekly program activity schedule for mother at Orchid.

Counsel for the children told the court that she agreed that the court had no other option but to terminate services to the mother in this case. She agreed that mother started the services way too late in these childrens lives, and as the courtas the court knows, time is not tolled for parents to basically decide that they are going to start atyou now, working on their plan. She added: There is not one possibility that the law would support this court giving her more services at this time for the six-month review period, which is the time that she was supposed to work on her plan. She did nothing. Counsel for the children also found it appalling that mother had only one visit with the children since the court hearing in July 2006.

The court found that mother did not have regular contact with the children, had not made significant progress in resolving the problems that led to the removal of her children, and had not demonstrated the capacity and the ability to complete the objectives of the treatment plan. The only evidence mother had presented was that she had been attending a program for two months after doing nothing for six or seven months. The court concluded that it could not find there was a substantial probability that these children would be returned to mother in six months. The court terminated reunification services and set the matter for a section 366.26 hearing.

Mother filed a writ petition pursuant to California Rules of Court, rule  8.452, on March 16, 2007.

DISCUSSION

I. Terminating Reunification Services and Setting the Section 366.26 Hearing

Mother challenges the juvenile courts order terminating reunification services and setting the section 366.26 hearing. We review an order terminating services and setting a permanency planning hearing to determine if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.)

When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.) Substantial evidence is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. . . . (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The burden is on the petitioner to show the evidence is insufficient to support the trial courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Since J.D. and Jay D. were under the age of three years when removed from mothers custody, reunification services would ordinarily be limited to six months. ( 361.5, subd. (a)(2).) The purpose of the six-month limitation on services is to provide the juvenile court greater flexibility in meeting the needs of young children where the parents have made little or no progress in their service plans and the prognosis for overcoming the problems leading to the childs dependency is bleak. (Daria D. v. Superior Court (1988) 61 Cal.App.4th 606, 612.) [V]ery young children . . . require a more timely resolution of a permanent plan because of their vulnerable stage of development. . . . [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical. (Ibid.)

Consequently, on the six-month review date, the juvenile court may schedule a section 366.26 permanency planning hearing if it finds by clear and convincing evidence that the parent or parents failed to participate regularly and make substantive progress in the court-ordered treatment plan. ( 366.21, subd. (e).) In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection, and well-being. ( 366.21, subd. (g)(1).)

Mothers sole argument is that she entered Orchid in December 2006 and she was meeting all of the requirements of the program. However, the record is clear that mother failed to comply with any portion of her plan for more than six months. As already noted, since the fraternal twins were younger than three years old when removed from her custody, the maximum period of reunification services is generally six months. ( 361.5, subd. (a)(2).) By the time of the hearing, mother had only been at Orchid for two months and she had not met all of the requirements of her plan. Mothers court-ordered plan required her to attend individual therapy, to complete a mental health assessment, to complete a domestic violence program, to complete parenting education, to attend a 12-step program, to complete successfully an outpatient substance abuse program, and to participate in random drug testing. Thus, mothers waiting until after six months to start trying to meet the objectives of her plan was too late and prevented her from being able to establish a demonstrated capacity and ability to complete the objectives of her case plan to provide for her childrens safety, protection, and well-being.

Mother completely ignores that she also had to establish that she regularly visited the children and made significant progress in resolving the problem prompting removal of the children. The record establishes that mother only visited the children twice since the time they were removed in May 2006, until visitation was suspended in December 2006. Moreover, during this period, mother told the social worker that she did not want to visit the children. Thus, the record is devoid of any evidence supporting a finding that she regularly visited the children. Similarly, the record establishes that mother never acknowledged that she had any role in her childrens developmental problems and she continued to assert that the children had no problems until they were removed from her care. We therefore conclude that the record supported a finding that she had not made significant progress in resolving the problem prompting the childrens removal from her custody.

Accordingly, we conclude that substantial evidence supported the lower courts finding by clear and convincing evidence that mother failed to participate regularly and make substantive progress in the court-ordered treatment plan.

II. Termination of Visitation

Mother argues that the record does not support the courts order of December 19, 2006, which suspended visitation between her and the twins. Mother had 60 days from December 19, 2006, to appeal that decision. (Cal. Rules of Court, rules 8.400(d)(1) & 5.585(f).) Mother filed this writ petition on March 16, 2007, almost one month after the time for appealing the visitation order had expired. Any challenge to the visitation order is therefore untimely and has been waived.^[3]

DISPOSITION

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, 14; Kowis v. Howard (1992) 3 Cal.4th 888; 366.26, subd. (l)(1) [precluding further challenge to these orders by petitioner in any subsequent appeal].) The temporary

stay previously imposed is lifted. Our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] All further unspecified code sections refer to the Welfare and Institutions Code.

^[2] The record does not contain a transcript of this hearing.

^[3] Even if we were to consider this argument, mother failed to provide this court with an adequate record. The only document in this record related to the visitation order is the actual minute order. The record does not contain a transcript of the hearing on visitation. Mother has the burden of producing an adequate record on appeal. (See, e.g., Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)