M.A. v. Superior Court

Filed 10/28/08 M.A. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Lily Sinfield, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Gloria Gebbie for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

Petitioner M.A., mother of K.A. and L.A. (three year old twins), petitions to vacate an order setting a hearing for the selection and implementation of a permanent plan for the children at a 12-month review hearing. (Welf. & Inst. Code, 366.21, subd. (f).^[1]) Mother contends the juvenile court abused its discretion in refusing to extend reunification services for an additional six months and that there was insufficient evidence to support the trial courts finding that there was not a substantial probability the children could be returned to her custody within the next six months. We deny the petition.

BACKGROUND

On June 6, 2007, L.A. and K.A. were found by police, with their mother, who was under the influence of methamphetamines, living in a garage with dirt floors and no utilities in Riverside County. Mother admitted that she was a chronic methamphetamine user who has been in inpatient residential treatment programs twice, but nonetheless resumed her use of drugs. The children were taken into temporary custody.^[2]

The DPSS filed a dependency petition, alleging that mother had neglected to provide her children with adequate food, clothing and shelter, and that she was unable to provide regular care for the children due to her substance abuse. ( 300, subd. (b).) The petition was sustained on July 2, 2007, and the court found the minors were persons described by section 300, subdivision (b), based on the allegations relating to mothers drug use and neglect of the children. The children were placed in the custody of DPSS, and mother was ordered to participate in a reunification plan. Because mother was a resident of San Bernardino County, the case was transferred there.

Following the transfer, mother entered a residential drug treatment program and engaged in parenting education. She graduated to a sober living home in Adelanto, to be closer to the children for visitation purposes. By the time of the six-month status review report, mother was residing in the sober-living facility, had been employed for a short time before being laid off, had been diagnosed with posttraumatic stress disorder (related to the 2006 murder of the father of the twins) for which she took two different antidepressant medications, and visited regularly.

However, the social worker observed that mother attempted to seek services that were not authorized (such as scrip for gas) by going to the DPSS office when her social worker was absent, and representing to another social worker that her worker had authorized the scrip.

The report also commented on special problems of the children: K.A. had speech delays and eyesight problems, and neither twin was potty trained by the age of four. Additionally, the report observed that at visits mother had to be asked to take more of a lead role in parenting to discourage the aggressive tendencies of L.A. (the more aggressive twin). The social worker concluded mother was too dependent on DPSS and noted mothers mental health was not being monitored by a psychiatrist, considered significant in light of mothers past history of discontinuing her medication against the advice of the prescribing doctor. At the six-month status review hearing, the court found that mother had made moderate progress in her case plan, but that returning the children to mothers custody would be detrimental. The court continued the children as dependents of the court and extended reunification services until the next status review hearing.

However, the next status review report, prepared for the 12-month review hearing, revealed mother had relapsed. A drug test positive for methamphetamines resulted in the loss of her housing in the sober living facility. Mother denied relapsing, claiming that the antidepressant medication caused a false-positive result. However, the lab reported that while some medications might produce a false positive test result for amphetamines, the tests would not yield a false positive for methamphetamines.

The report also contained negative information about mothers parenting and her ability to adequately supervise and protect her children. At visits, mother still did not take a lead role in parenting the twins and was unable to control L.A.s aggressiveness, requiring the foster mother to intervene to stop fights between the children. Further, in April 2008, K.A. was found to have suffered a fractured collarbone while the children were in the bathroom of a McDonalds restaurant alone with mother. The children reported that L.A. had pushed his brother, causing the injury, although mother reported she did not know how the injury occurred. DPSS recommended that services be terminated and that the matter be set for a hearing to select and implement a permanent plan for the children.

On August 6, 2008, the date originally scheduled for the 12-month status review hearing (also called the permanency hearing), the court ordered mother to submit to a drug test. The results received on August 21, 2008, showed no presence of amphetamines or methamphetamines in the urinalysis, but the hair follicle test showed the presence of both amphetamines and methamphetamines, indicating mother had used drugs within 90 days of the test. After hearing testimony from mother and the social worker, the court found the extent of mothers progress was minimal, terminated reunification services and scheduled a hearing to select and implement a permanent plan for the children. ( 366.26.) Mother timely filed a notice of intent to file a petition for extraordinary relief.

DISCUSSION

Mother contends the juvenile court abused its discretion in failing to grant her additional time to reunify where there was no substantial evidence to support the courts finding of detriment. She argues that whereas failure to regularly participate in the court ordered treatment program constitutes prima facie evidence that it would be detrimental to return children to the custody of a parent, the corollary should also apply: that evidence a parent has participated constitutes prima facie evidence it would be safe to return the children to mothers custody. We disagree.

We review the juvenile courts findings of fact (as to the existence of detriment, and whether return within six months is substantially probable) under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) Whether the court correctly terminated services based upon these findings of fact is reviewed under the abuse of discretion standard. (In re Brian M., supra, at p. 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)

a.                                           The Detriment Finding, and the Finding of No Substantial Probability of Return Within Six Months, Are Supported By Substantial Evidence

Legal safeguards and the laws strong preference for maintaining family relationships are applied to prevent unwarranted or arbitrary continuation of out-of-home placement of children. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) A juvenile court is thus required to return the child to his or her home unless detriment is established. The social worker has the burden of establishing detriment. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345 (Jennifer A.).) Detriment does not mean merely that the parent in question is less than ideal, did not benefit from reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.)

Detriment refers to the risk of physical or emotional harm to a child posed by return of the child to parental custody, which must be established to justify nonreturn of the child to his or her parents home. While a court, at a 12-month permanency hearing, must consider the extent to which the parent has cooperated with the services provided and the efforts the parent has made to correct problems giving rise to the dependency, 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.)

Although a parents failure to regularly participate, and make substantive progress in court-ordered treatment programs, is deemed prima facie evidence that return would be detrimental ( 366.21, subd. (f)), it is not the exclusive measure of detriment. There are many occasions where a parent has substantially completed the components of the reunification plan, but to whom return is nonetheless foreclosed as detrimental. (See In re Jasmon O. (1994) 8 Cal.4th 398 [despite fathers completion of court-ordered treatment programs, evidence of psychological trauma to the child if separated from the foster parents who had raised her constituted detriment]; see also In re Brian R. (1991) 2 Cal.App.4th 904, 913, 915 [father had made significant strides in correcting problems that led to the dependency, but a psychological testing and evaluations compelled the conclusion he lacked the capacity to parent].) It would be incorrect to presume that a parents compliance with reunification automatically dispels a finding of detriment.

Mother attempts to characterize the courts finding of detriment as based solely on the admission into evidence of two positive drug tests, the validity of which she questioned.^[3] She attempts to draw a parallel between this case and that of Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, where Division Three of this district held that a single positive drug test, after mother ingested Tylenol with codeine, did not establish sufficient detriment to warrant nonreturn. (Id. at p. 506.)

However, there was other evidence of detriment in this case. First, unlike the parents in Rita L. and Jennifer A., the mother here was in denial about her use of methamphetamines. Mother attributed the positive test results to ingestion of prescribed antidepressant medication, despite evidence such a false positive result was not possible. Second, mother continued to have difficulty controlling her childrens behavior, particularly the aggression of L.A. Instead, she chose to ignore their fights until another adult intervened. This ultimately resulted in serious injury to K.A. just four months before the permanency/status review hearing.

Third, both children had special needs to be met, including chronic, prolonged vomiting of L.A., delayed speech and visual problems of K.A., and delayed milestones, such as potty training, as to both children. Fourth, there was the incident in which K.A. suffered a broken collar bone, during a visit at a McDonalds restaurant, while the twins were in the bathroom, due to mothers failure to supervise them when the foster mother was not present for only a few minutes. Although mother had made progress in treating her substance abuse problem, and had attended various parenting programs, her unstable situation, her inability to parent and her continued failure to supervise and protect the children exposed them to a substantial risk of harm.

In short, the courts finding of detriment was not simply based on an isolated positive drug test. The record demonstrates substantial evidence to support the courts findings that return to mothers custody would be detrimental, and that it was unlikely the children would be returned within six months.

b.                                          Termination of Services Was Not An Abuse of Discretion

Mother argues that there was a substantial probability of return to her care before the expiration of 18 months to support a continuance of services. ( 366.21, subd. (g)(1).) We disagree.

A juvenile court shall continue the caseand reunification servicesonly if it finds there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, or where reasonable services have not been provided. ( 366.21, subd. (g)(1).) A court may only order the additional services if it specifically finds that the parent has consistently and regularly contacted and visited with the child, made significant progress on the problems that led to removal, and demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845.)

Here, the court found mothers progress was minimal, and mothers failure to provide for the childrens safety and protection was demonstrated by the lack of supervision which gave rise to K.A.s fractured collarbone. Given mothers ongoing problems controlling L.A.s aggressive behavior, her tendency to ignore the childrens fights rather than take a parental role in guiding their behavior, and her persistent denial of recent drug use in the face of unrefuted evidence that her medication could not have caused false positive results, there was no evidence on which the court could conclude there was a substantial likelihood the children could be returned in six months.

The court did not abuse its discretion in terminating services and setting a hearing to select and implement a permanent plan for the children.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Miller

J.

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^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] The court ordered the removal of the minors and placed them in the temporary custody of the Department of Public Social Services (DPSS) after finding that probable cause existed to detain them. We remind the juvenile court that prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to remove a child from a parents custody. A child may be taken into temporary custody by a peace officer or social worker ( 305, 306), and, at the detention hearing, the court is empowered to determine whether the minor shall be further detained. ( 315.) It is only after the jurisdictional hearing that a court may consider whether it should limit the control to be exercised over the dependent child at the disposition phase. ( 361, subd. (a).) Section 355, cited in the minutes, governs evidentiary matters at the jurisdictional hearing and does not authorize removal before jurisdiction is even established.

^[3]Unfortunately, the evidence of two positive tests was admitted without objection, and mother failed to introduce expert evidence that the results were false positives.