Filed 10/12/17 M.P. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Raymonda B. Marquez, Judge.

Keenan S. Perkins, for Petitioner.

No appearance for Respondent.

Mark L. Nations, Interim County Counsel, and Bryan C. Walters, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

M.P. (mother) seeks extraordinary writ review of the juvenile court’s orders issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22)[1] terminating her reunification services and setting a section 366.26 hearing as to her now three-year-old daughter, Ariel. Mother contends there is insufficient evidence to support the court’s finding it would be detrimental to return Ariel to her custody. We deny the petition.

PROCEDURAL AND FACTUAL BACKGROUND

Dependency proceedings were initiated in September 2015 after mother’s then three-year-old daughter, Jasmine, was found walking along a highway at night, barefoot and wearing pajamas. A passerby attempted for several hours to locate Jasmine’s residence with no success before contacting the sheriff’s department. A sheriff’s deputy transported Jasmine to child protective services after checking for any missing persons reports. At approximately 1:23 a.m., the sheriff’s office received a call about a missing three-year-old, last seen around 10:00 p.m., the night before.

Mother told the sheriff she sent Jasmine to bed the night before at about 10:00 p.m., but Jasmine would not go to sleep. Mother left the apartment to “hang out,” drink alcohol and smoke marijuana with her friend, Marty, in the apartment complex. When she left, Jasmine was sitting on the steps. She did not tell her mother, Brenda, who also lived in the apartment, that she was leaving because she believed Jasmine would be fine on her own. Mother was arrested and charged with child endangerment.

A sheriff’s deputy took Ariel into protective custody after a social worker conducted a welfare check on her and found the apartment unlivable. The social worker observed a roach infestation, rotting food, exposed wires, and clutter. She also smelled cat urine and saw a cat box full of cat feces. The Kern County Department of Human Services (department) placed Jasmine and Ariel in foster care.

The department filed a dependency petition on Ariel’s behalf alleging under section 300, subdivision (b)(1) (failure to protect) there was a substantial risk she would suffer serious physical harm because of mother’s failure to supervise Jasmine and provide adequate shelter. As factual support, the department alleged mother left Jasmine unattended to drink alcohol and housed the children in unlivable conditions. Mother submitted on the petition after it was amended, by striking the words “to drink alcohol.”

The juvenile court exercised its dependency jurisdiction, removed the children from mother’s custody and ordered her to participate in substance abuse counseling, complete a 26-week parenting program and visit Ariel weekly under supervision. The court did not provide Ariel’s father reunification services because he was an alleged father. The court placed Jasmine with her father and terminated its jurisdiction over her.

Mother pled no contest to a charge of child endangerment and was required to complete a 52-week parenting program as a condition of probation.

During the first six months of reunification services, Mother participated in parenting and substance abuse counseling but failed to drug test on a consistent basis. In addition, she was “challenging” according to the department and did not understand simple statements and directives. She lacked insight into parenting and required prompting to change Ariel’s diaper or feed her. In addition, mother was living with her boyfriend, Marty, who was a registered narcotics offender because of his methamphetamine use. The social worker explained to mother that Marty would not be allowed near Ariel because of his criminal history.

In its report for the six-month review hearing prepared in late May 2016, the department recommended the juvenile court continue reunification efforts and include guided visitation as a part of mother’s services plan. Around that same time, the department placed Ariel with foster parents, Mr. and Mrs. F. (collectively, the F.’s).

The juvenile court adopted the department’s recommendations at the six-month review hearing in June 2016, and continued mother’s reunification services. Mother began guided visitation in August 2016. By November 2016, she was living in a homeless shelter.

On December 15, 2016, at the 12-month review hearing, the juvenile court found mother had made substantial progress and continued reunification services. By that time, mother was mid-way through her 52-week parenting program but her noncompliance with drug testing continued. As a result, she was required to participate in a higher level of substance abuse treatment, which she completed. She was also participating in guided visitation and had five more guided visits left to complete the program. The court granted the department discretion to increase visitation.

Two days before the hearing, the F.’s filed a “Caregiver Information Form” (JV-290), informing the juvenile court they wanted to adopt Ariel if reunification failed. They also described disturbing behavior Ariel was exhibiting, such as night terrors and mood swings. She also became wobbly, forgot names and regressed to wearing a diaper. She bit herself, pulled her hair out and ate it. When asked why she did these things, she said she did not want to visit or liked the pain. The F.’s sought medical and even mental health treatment for Ariel with no success.

On December 19, 2016, the department scheduled mother’s first unsupervised visit with Ariel at a homeless shelter where mother was living. Mrs. F. reported that Ariel returned to her with dirt all over her face and hands. Also, Ariel had a “full” diaper and the extra diaper Mrs. F. sent with her was still in her diaper bag. Mrs. F. also reported that two weeks before, Marty followed Mr. F. and Ariel out of the visitation center to their car. Marty stared at them and acted as if he were under the influence. Marty left after Mr. F. asked him what he wanted. Mother explained that Marty was there to pick her up and said he was no longer using drugs. She accepted the social worker’s admonishment that Marty was not to have contact with Ariel and should not have entered the visitation center or followed Mr. F. to his car. A social worker made two unannounced visits over the next two months to check on mother and Ariel and did not observe any problems. She did note, however, that upon seeing her Ariel mentioned going home with “Mommy,” a reference to Mrs. F.

In March 2017, mother enrolled in a relapse treatment program because she was not drug testing, but was discharged from the program a month later in April for failing to attend groups and self-help meetings and because she missed three consecutive substance abuse counseling meetings. When asked why she failed to drug test, she was unable to explain and appeared unable to understand the need to establish and prove sobriety through consistent drug testing with negative results.

By May 2017, the department had returned to supervised visitation because mother tested positive for marijuana and failed to drug test. During that time, Ariel became increasingly resistant to visiting mother. She stated she did not want to go and when she was with mother, she asked for Mrs. F.

The department recommended the juvenile court terminate mother’s reunification services at the 18-month review hearing. Though mother had completed the counseling components of her services plan, she only partially complied with the drug testing requirement. Over the 21 months of services, she failed to test 25 times, resulting in 25 presumptive positive tests, and tested positive for marijuana three times. In addition, mother associated with drug users and refused to acknowledge her association was a detriment to her sobriety. She also lived at a homeless shelter and had not demonstrated she could maintain a clean and safe residence for the family.

On June 13, 2017, the juvenile court conducted a contested 18-month review hearing. The department submitted the matter on its reports. Mother’s attorney called social worker Amada Jabin to testify and elicited that mother completed the 26-week parenting program required by the department, the 52-week parenting program required as a condition of probation, two substance abuse programs and guided visitation. Jabin did not know what services the department provided to mother to obtain housing but knew that mother could have custody of Ariel at the homeless shelter. She testified that mother’s unsupervised visits were terminated because she tested positive for marijuana but knew of no instances in which mother was under the influence or in possession of any illegal drugs while caring for Ariel. She described mother’s visits with Ariel as “somewhat adequate.”

Jabin also testified that mother was called to drug test 18 times since November 2016 but failed to test on five of those occasions. She also acknowledged that mother tested positive for THC (tetrahydrocannabinol)[2] four days apart on January 30 and February 3, 2017, in diminishing amounts (50 nanograms per milliliter (ng/ml) and 18 ng/ml, respectively) and then tested negative on February 7, implying a onetime use. Nevertheless, Jabin believed it would be detrimental to return Ariel to mother’s custody because mother tested positive for marijuana three times over the entire reunification period, made light of testing positive and did not follow the court’s orders by testing consistently and regularly.

Mother testified she learned in guided visitation to engage and interact with Ariel, teach her things and bond with her. She believed they had a good relationship. She explained that she missed drug tests because she forgot to call in and she was around Marty who used marijuana. She said she tested positive for marijuana on January 30 and February 3, 2017, because Marty blew the smoke in her face. She also helped him make marijuana brownies and licked her fingers. She testified the social worker never discussed assistance with obtaining housing. Asked whether she would ever leave Ariel unsupervised again, she said “Absolutely not.”

The juvenile court found it would be detrimental to return Ariel to mother’s custody, terminated reunification services and set a section 366.26 hearing. In ruling, the court detailed mother’s compliance with her services plan, noting she successfully completed the 26-week parenting program but failed to consistently drug test, maintained a relationship with Marty and demonstrated a questionable ability to parent Ariel. The court found mother made acceptable efforts to facilitate Ariel’s return to her custody but minimal progress in alleviating or mitigating the causes for Ariel’s removal.

DISCUSSION

Mother challenges the sufficiency of the evidence to support the juvenile court’s finding, made at the 18-month review hearing, that returning Ariel to her custody would “create a substantial risk of detriment” to Ariel’s safety, protection or physical or emotional wellbeing. She argues her failure to fully comply with drug testing and discontinue her association with Marty and her lack of housing are insufficient to support a risk of detriment finding. We disagree.

We must uphold a juvenile court’s detriment finding if it is supported by substantial evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401 (Yvonne W.).) “We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) On appeal, the parent has the burden of showing that there is no evidence of a sufficiently substantial nature to support the court’s finding. (Ibid.)

Section 366.22, subdivision (a)(1), which governs 18-month review hearings, provides, in pertinent part: “the court shall order the return of the child to the physical custody of his or her parent … unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”

“In determining whether it would be detrimental to return the child at the 18-month review, the court must consider whether the parent participated regularly in any treatment program set forth by the plan, … the ‘extent’ to which the parent ‘cooperated and availed himself or herself of services provided.’ ” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) “The failure of the parent … to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a)(1).)

“The standard for showing detriment is ‘a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.’ Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child’s physical or emotional well-being.” (Yvonne W., supra, 165 Cal.App.4th at p. 1400; citations omitted.)

Substantial evidence supported the juvenile court’s detriment finding. After 21 months of services, mother had yet to demonstrate her ability to remain drug free. In ruling, the court noted that she completed substance abuse counseling in December 2016 only to test positive for marijuana in January and February 2017. The department required her to enroll in a relapse program, which she did in March 2017. However, she was noncompliant and discharged from the program the following month, in April.

Mother contends the juvenile court’s reliance on her drug testing performance was insufficient to support a detriment finding. She likens her case to Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.), in which the appellate court found a mother’s “missed, diluted, and positive drug tests” between the 12- and 18-month review hearings did not support a finding of detriment. The court issued a writ of mandate, directing the juvenile court to vacate its orders terminating reunification services and setting a section 366.26 hearing. (Jennifer A., at pp. 1346-1347.) Mother contends her case commands the same result. We disagree.

In Jennifer A., the minors were removed from the mother’s custody because she left them alone on one occasion while she worked. (Jennifer A., supra, 117 Cal.App.4th at pp. 1326, 1328.) Substance abuse was not alleged in the petition as a reason for removal, but the mother, who admitted she occasionally smoked marijuana, tested positive for marijuana once and missed nine out of 95 drug tests. (Id. at pp. 1326, 1343.) Otherwise, the mother was in compliance with her case plan. (Id. at p. 1344.) After finding that returning the children to the mother’s custody placed them at risk because of her missed drug tests and the positive test for marijuana, the court terminated reunification services at the 18-month review hearing and set a section 366.26 hearing. (Jennifer A., at p. 1340.) The appellate court disagreed that the mother failed to comply with the drug testing requirement, concluding that her 84 drug free test results out of 95 obligations to test demonstrated she “substantially, though not strictly, complied with the terms of the reunification plan.” (Id. at p. 1343.) The court also found that the mother’s drug use was not the reason her children were removed from her custody and that she made “substantive progress” in the services that addressed those problems. (Id. at pp. 1344-1345.)

Here, mother did not substantially comply with her drug testing requirement. Although the juvenile court did not characterize mother’s compliance with respect to drug testing, it noted, “[o]f the total drug test opportunities … , there have been 23 failures to test, 27 negative tests and two positive tests.” The court considered mother’s compliance over the entire reunification period, which reflects she effectively tested positive (presumptively or actually) nearly as often as she tested negative. Even if the juvenile court confined itself to the prior six months, according to Jabin’s testimony, mother tested positive 39 percent of the time; seven (five missed and two positive tests) of the 18 opportunities to test.

Further, even though substance abuse was not a basis upon which the juvenile court ordered Ariel removed, there is substantial evidence that mother’s continuing use poses a risk of detriment to her. On the night mother left Jasmine unattended, she and the children were living in deplorable conditions. She left Jasmine unattended to drink alcohol and smoke marijuana with Marty. The court ordered mother to address issues of child neglect and substance abuse and mother failed to sufficiently address the substance abuse concern. On this evidence, the court could reasonably infer that mother’s neglect was directly related to her substance abuse and that, given her drug testing performance, Ariel would be at risk of neglect if returned to her custody.

Similarly, mother’s ongoing relationship with Marty and her homelessness point to a risk of detriment to Ariel if placed in mother’s care. Mother’s circumstances had not changed in the nearly two years since Ariel was removed from her. In September 2015, mother was abusing substances with Marty and neglecting her children. In June 2017, she was still abusing substances with Marty and planning to move into an apartment with him.

We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.