Melissa P. v. Sup. Ct.

Filed 6/13/07 Melissa P. v. Sup. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Melissa P., the mother of Jordan, age eight, petitions this court to set aside the juvenile courts order setting a permanent plan hearing pursuant to Welfare and Institutions Code[1] section 366.26. She contends that the Mendocino County Department of Social Services (Department) failed to provide her with reasonable reunification services. We deny the petition.

Factual Background

Jordan first came to the attention of the Department in June 1999, when she was six months old. The court sustained allegations of domestic violence, physical abuse of Jordans half-sister, and substance abuse. Mother and Jordans father participated in family reunification services, however, the court terminated mothers services in October 2000, because she failed to complete her service plan and started to use drugs. The court returned Jordan to the care of father. On September 20, 2001, the court terminated mothers rights to Jordans half-sister. Mother was incarcerated during some of the dependency proceedings.

On March 2, 2006, the Department filed a section 300 petition alleging that father physically abused Jordan, that he committed domestic violence in the home and that he had a substance abuse problem inhibiting his ability to parent. The petition further alleged that mother had a long-standing substance abuse problem and was currently incarcerated in the Lake County Jail awaiting transport to state prison. The court ordered that Jordan be detained and placed in foster care.

The jurisdictional hearing was held on April 3, 2006. Mother did not contest jurisdiction. The court found jurisdiction based on the allegations that father physically abused Jordan, that father engaged in domestic violence, and that both parents have a substance abuse problem inhibiting their ability to parent, that father has diabetes and does not properly care for himself, and that mother was currently awaiting sentencing in the Lake County Jail.

The dispositional hearing was held on May 3, 2006.[2] The Department recommended that the court bypass reunification services pursuant to section 361.5, subdivision (b)(11). Mother opposed the Departments position, arguing that the bypass provision, which provides that reunification services need not be provided to a parent whose parental rights have been severed as to a sibling or half-sibling of the child at issue, only applied to a parent from whose custody the child was removed. The court ordered reunification services for mother, specifically permitting her to visit with Jordan by letter and monthly telephone calls, requiring her to complete a substance abuse program and parenting classes, and to maintain contact with the social worker.

At the time of the six-month review hearing in October 2006, mother was in compliance with her reunification plan. The Departments report for the hearing indicated fathers visitation with Jordan had been suspended because fathers inappropriate remarks during visitation had intimidated Jordan. Jordan reported to the social worker and her therapist that she was sexually molested by Kyle, her brother. Her father denied that the abuse occurred. The court continued reunification services for parents but ordered that there be no visitation with father.

An interim review hearing regarding visitation was held on January 18, 2007. The Department reported that Jordan, through her therapist, asked to have visitation with father. The Department also reported that Jordan told her therapist that Jordan did not want to continue visitation with mother. The court adopted the Departments recommendation that father have a monthly supervised visit with Jordan and that visitation with mother would continue by telephone and letter but that Jordan would have the option of not participating.

The 12-month review hearing was held on March 28, 2007. The Department recommended that reunification services be terminated. It noted that mother was not due to be released from prison before the 12-month review, that she had a long history of substance abuse and did not have a bond with Jordan. It further reported that father had not complied with his reunification plan, continued to deny any responsibility for Jordans abuse, and that Jordan did not want to reunify with either parent. Jordan was living with her paternal grandmother who was willing to adopt her.

Jordan testified in chambers at the hearing. She insisted on calling mother, Melissa. She did not want to live with mother and was afraid that mother would come and try to take her away when she got out of prison. She also was afraid of father and did not want to live with him because he might hurt her when he uses drugs.

Mother testified that she was enrolled in a substance abuse treatment program in prison. Upon release from prison, mother planned to enter the Walden House treatment program for a minimum of 150 days and a maximum of 15 months. She admitted that Jordan had not lived with her since June 1999, when she was six months old and that she had not had a face-to-face visit with her since December 2005. She also testified that she could not presently provide Jordan with the stability and routine she needs. Finally, she admitted that she had been incarcerated seven times including five times in state prison, for drug related offenses in the past nine years.

Father did not oppose Jordan remaining with her grandmother but sought continued visitation. Mother sought an additional six months of reunification services. The court adopted the Departments recommendation; it terminated reunification services for parents, and set the matter for a section 366.26 hearing.

Discussion

Mother contends that the trial court abused its discretion in finding that reasonable reunification services were provided and by not extending reunification services for six additional months. We conclude that substantial evidence supports the courts finding that reasonable services were provided.

In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the [Department]. We must indulge in all reasonable and legitimate inferences to uphold the judgment. [Citation.] If there is any substantial evidence to support the findings of a juvenile court, [we are] without power to weigh or evaluate the findings. [Citation.] (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361-1362.)

Mother argues that reunification services were inadequate because the Department did not facilitate family therapy between her and Jordan. The record demonstrates that the Department sought to provide reasonable reunification services even though mother was in prison and had not had a consistent relationship with Jordan in over seven years. First, the Department arranged telephone and letter correspondence between mother and Jordan. This proceeded well until after the six-month review hearing when Jordan became increasingly resistant to any form of contact with her mother. The Department then sought to have mother speak with Jordans therapist but the therapist declined to speak with mother because he opined that Jordan should not have to have any contact with her, that Jordan was ready to move on from her mother, and that she should not be forced to maintain phone contact with her. At the 12-month review hearing, mothers social worker testified that she did not arrange family therapy because mother was incarcerated, that she would not be released during the reunification period, and that it was impracticable to order therapy when the mother was unavailable. Given Jordans emotional status, her tenuous relationship with mother, and the therapists recommendation that Jordan not be forced to have contact with mother, the record fails to support mothers argument that she was denied reasonable reunification services.

Mothers contention that the juvenile court erred in not ordering an extension of reunification services also lacks merit.

Pursuant to section 361.5, subdivision (a)(3), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown . . . that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period.

Here, the court properly determined that reunification was not probable if services were extended. Upon release from prison,[3] mother was to enroll in the Walden House for a period from 150 days up to 15 months. The record showed that mother had no bond with Jordan, had not lived with her since she was six months old, and had not demonstrated that she could provide a safe home for her. Moreover, as the court found it would be purely speculative if Jordan could be safely returned to mother within the extended statutory period. The court noted that while she was doing well in an institutional setting, her progress was not necessarily indicative of how she would do once she was released. (See In re Brian R. (1991) 2 Cal.App.4th 904, 918 [court must evaluate whether mother would be able to maintain a stable and sober lifestyle].) Here, as the court found it was not probable that Jordan would be returned to her mother if reunification services were extended. While mother had made progress on her substance abuse and attended parenting classes, her absence in Jordans life for well over seven years, and the uncertainty over her ability to remain sober upon her release from prison and provide a stable home for Jordan, made it extremely unlikely that she would be able to reunify with her in the limited time remaining if reunification services were extended.

Finally, mother argues that the Department based its decision to deny reunification services solely on Jordans desire to remain with her grandmother. Citing In re Joseph B. (1996) 42 Cal.App.4th 890, she argues that since she completed her reunification services, the court cannot deny Jordans return to her based on a finding of detriment that was not the original basis for dependency.

Mothers reliance on Joseph B. is misplaced. The Joseph B. court explained that even if a parent satisfies the requirements of the reunification plan, the court need not return the child to the parents custody if return would create a substantial risk of detriment to the emotional well-being of the child. (In re Joseph B., supra, 42 Cal.App.4th at p. 901.) Consistent with the purpose of the dependency scheme, the question whether to return a child to parental custody is dictated by the well-being of the child at the time of the review hearing; if returning the child will create a substantial risk of detriment to his or her physical or emotional well-being ( 366.21, subds. (e) & (f), 366.22, subd. (a)), placement must continue regardless of whether that detriment mirrors the harm which had required the childs removal from parental custody ( 300, subds. (a)-(j), 361, subd. (b)). (Id. at p. 900.)

Here, the court denied reunification services because it was not probable that Jordan would be returned to mother if services were extended for an additional six months. Substantial evidence supports that determination. While mother made substantial progress on her reunification service plan, there was insufficient evidence to support a finding that the child could be safely returned to her within the extended statutory period. The court therefore did not abuse its discretion in terminating reunification services.

Disposition

The petition for an extraordinary writ is denied on the merits. ( 366.26, subd. (l).) Our decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

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Rivera, J.

We concur:

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Ruvolo, P. J.

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Sepulveda, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] A dispositional hearing as to father was held on April 13, 2006. The court ordered reunification services and supervised visitation. Father has not filed an appeal in this action.

[3] Mother was due to be released on May 22, 2007.