Ruby D. v. San Bernadino County

Filed 7/31/07 Ruby D. v. San Bernadino County 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Robert G. Fowler, 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 Dawn Stafford, Deputy County Counsel, for Real Party in Interest.

Petitioner Ruby D. (Mother) is the mother of a three-year-old girl (Daughter) and a two-year-old boy (Son). Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the children. Mother contends that the juvenile court erred in finding that she had not substantially complied with her case plan and therefore erred in denying her request for additional reunification services. For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

Mother, then age 21, her then-husband (Stepfather), and the children moved to California from Texas in December 2005 in the aftermath of Hurricane Rita. Even prior to the hurricane, Mother had had a difficult time maintaining a stable residence, and Texas Child Protective Services (Texas CPS) was already involved with the family. She had several prior child protection referrals in Texas for physical abuse, medical neglect, and neglectful supervision. Texas CPS was investigating allegations of substance abuse and neglect as to Mother when she moved to California.

The children came to the attention of the San Bernardino County Department of Childrens Services (DCS) on January 15, 2006, when then 13-month-old Son was seen at Barstow Hospital for an infection around his eyes and was found to have multiple suspicious bruises about his head, face, stomach, and back. Mother and Stepfather had no explanation for how some of the injuries occurred and had inconsistent explanations as to other injuries.

The maternal grandmother reported that, since being in California, Stepfather had tried to kill himself three times, once trying to hang himself in front of the children; that he had been under the care of a psychiatrist since he was 10 years old; and that he had not been taking his prescribed medications. When asked, Mother denied that Stepfathers behavior was unstable or that there were any concerns with leaving the children with Stepfather. Both Stepfather and Mother denied that Stepfathers actions were suicide attempts. However, while speaking with Mother and Stepfather, an officer and a nurse recognized Stepfather from an incident in which Stepfather was brought to the hospital on January 8, 2006, after Stepfather wrapped a telephone cord around his neck, struck his head, and took excessive amounts of Vicodin and Tylenol. At that time, Mother reported to hospital staff that Stepfather had attempted suicide in the past.

Mother and Stepfather were married in November 2005, and Stepfather was not the father of either child. Stepfather was incarcerated for assaulting Mother in January 2006. The father of the children (Father) resided in Texas and was reported as being violently abusive towards Mother and the children. He had been arrested numerous times in Texas for being physically abusive to Mother and the children and was convicted of assault with bodily injury in October 2004, when he attacked Mother while she was pregnant. He also had a history of substance abuse.

On January 15, 2006, DCS took the children into protective custody and filed section 300 petitions on their behalf pursuant to section 300, subdivisions (a) and (b). At the detention hearing, the children were formally removed from the parents and placed in a foster home. Mothers counsel informed the court that Stepfather was out of the home and that Mother was seeking an annulment of the marriage.

The social worker reviewed Mothers case plan with her. Mother was referred to a domestic violence program in Barstow, and arrangements were made for housing at a shelter. However, Mother clearly stated that she planned to return to Texas. She was then advised that if she obtained housing in Texas she would receive referrals in that area so as to allow her to complete her service plan. She was also advised that reunification with her children, though not impossible, would be difficult, as the children would remain in California unless relatives in Texas were approved. In addition, her visitation with the children would be limited if she chose to move to Texas.

On March 2, 2006, the juvenile court found the allegations in the petitions true as amended; the children were declared dependents of the court and maintained in their foster home. Mother and Father were granted reunification services and ordered to participate. At that time, the court asked Mother if she understood that her service time was limited due to the childrens young ages, and Mother responded, Yes. The court then explained the statutory time frame for reunification services for children under the age of three and stated that if the parents failed to participate regularly in their case plan, make substantive progress, and show they had benefited from their services, their services could be terminated as early as six months from that date.

Mothers case plan required her to attend counseling to address her past domestic violence issues; individual counseling to address past relationship issues, anger management, and parenting skills; a parenting education program; and an anger management program.

In a status review report filed August 30, 2006, the social worker recommended that the children remain in out-of-home care and that the parents be provided with additional reunification services. Mother had moved from California to Beaumont, Texas, and had been participating in her case plan. She was renting a home, had entered into a common-law marriage, was employed, and was pregnant and due in September 2006. She planned to give the baby up for adoption. Mother had completed her parenting classes. She stated that her domestic violence counselor/homeless shelter liaison told her she did not need to attend the program anymore, but the counselor denied telling Mother that and stated Mother was in need of more classes. The last time Mother attended her domestic violence session was on May 11, 2006. In addition, both parents acknowledged that they had not been on the best of terms; Mother reported that Father came to her place of work on numerous occasions to harass her.

Meanwhile, the children were doing well emotionally and physically in their foster home. They played well together, and Son was making progress in his developmental delays. The childrens current caretaker was willing to adopt the children, and the children had a bond with her.

Mother wanted the children placed in Texas and requested that the mother of her common-law husband, Ms. N., be assessed for placement, even though Mother was indecisive about staying with her husband. Mother had weekly telephone calls with Daughter, but Mother reported that Daughter just screamed and cried during the calls. The foster mother, however, noted that Daughter sang songs with Mother and told Mother that she loved her. Son was not able to speak due to his young age, but occasionally the foster parent put Son on the telephone so he could hear Mothers voice.

Mother was not present at the August 30, 2006, six-month review hearing, but Father was. The children were continued as dependents of the court and maintained in their confidential placement. The parents were granted additional reunification services, and the matter was continued for a 12-month review hearing.

On October 18, 2006, Mother appeared for an appearance review. The court ordered the social worker to travel to Texas to evaluate the homes and the parties and to provide a report to the court prior to the next hearing.

In an addendum report filed December 13, 2006, the social worker reported that he went to Texas in November 2006 and met with Mothers parenting class instructor and her domestic violence counselor. The parenting instructor reported that Mother took a very active role in the class and opined Mother might be able to care for the children with assistance of the STAR program, which sent workers to the home at least once a week. Mothers domestic violence counselor reported that Mother had benefited from her domestic violence program and also thought that Mother could do well with support through the STAR program. Her counselor also believed that Mother should remain in counseling and the domestic violence program if the children were returned to her.

The social worker also met with Mother at her two-bedroom home in Texas. This home belonged to the mother of her common-law husband, and Mother lived in the home rent free. The home was very clean and amply supplied with food, diapers, and formula for Mothers newborn son. Mother paid utilities from her job earnings and received food stamps and free daycare. However, on December 11, 2006, Ms. N. informed the social worker that she had kicked Mother out of the home and took her car away from Mother for lying, spending time with numerous men, and not caring for her baby. Hence, by December, Mother did not have a stable residence or a place to stay. The social worker noted that when he initially conducted the interviews in Texas, it appeared there was a good probability he would recommend return of the children to Mother. However, after speaking with Ms. N., the social worker had grave concerns about Mothers ability to adequately parent her children; Mother continued to become involved in relationships with manipulative and controlling people, including Ms. N., and continued to get involved in negative relationships.

On December 13, 2006, Mother confirmed that she had to find another place to reside and did not know how she was going to get another residence. She was adamant about residing in Texas despite the social worker urging her to return to California to complete her reunification services within the statutory time frame.

On January 22, 2007, Texas CPS informed the social worker that it was investigating Mother after she was involved in a car accident in which her newborn son was seriously injured and the hospital staff had contacted their department with concerns about Mothers behavior. The Texas CPS social worker reported that Mothers 18-year-old boyfriend, who had a suspended license, was driving the vehicle when he fell asleep at the wheel. The social worker was unsure whether the baby was properly strapped in a car seat. Mother, who had been residing with this boyfriend, indicated that she was going to [s]tand behind her man. Mothers newborn son was removed from her care by Texas CPS.

In addition, as of February 7, 2007, Mother had not completed her domestic violence program; she had stopped attending the program in December. She also failed to even begin her general counseling requirement. The social worker had sent Mother a certified letter informing her that she needed to attend counseling, but the letter was returned as undeliverable. Mother completed her parenting education program, but the social worker had doubts as to whether she had benefited from the program. When the social worker spoke again with Mothers domestic violence counselor, who was also Mothers homeless shelter liaison, the counselor no longer believed that Mother benefited from her parenting classes. This belief arose from the counselor observing Mother at the homeless shelter in which she wrote Mother up for not taking responsibility for her baby, after speaking with Mother many times about her actions.

In addendum reports filed March 22, April 11, and April 16, 2007, the social worker recommended terminating reunification services and setting a section 366.26 hearing. Texas CPS had taken custody of Mothers newborn baby, who had sustained a skull fracture and numerous bruises on the brain, and the authorities indicated their intention to fast track that case to adoption. The incident report of the car accident indicated that the babys car seat was not fastened into the vehicle; the car seat was on Mothers lap at one point and the baby was being passed around in the car from adult to adult. The Texas CPS social worker reported that Mother was not in a stable environment; that she was putting men before her children; that she was residing with her 18-year-old boyfriend, who had a significant criminal and substance abuse history and who admitted to selling methamphetamine in the past; and that she told the worker that her boyfriend wanted to take care of her and her children. Mother was expelled from of her homeless shelter after she left for two days and was seen flirting with all the men workers. The social worker noted that, during the course of the six-month reporting period, Mother had not worked on her service plan and had failed to benefit from the programs that she had completed or attended.

Meanwhile, the children were well cared for in their foster home, and their caretaker was willing to adopt them. Mother had visited the children on December 13, 2006, after a court hearing. Daughter smiled and hugged Mother. Son appeared to be afraid of Mother and cried, apparently because he was unfamiliar with her.

The contested 12-month review hearing was held on May 3, 2007. The social workers reports were admitted into evidence. Mother testified that she continued to reside with her boyfriend and that they were planning on getting married. She acknowledged that she was supposed to complete domestic violence and general counseling; however, it had been her understanding that the general counseling component was incorporated into the domestic violence counseling, and that is why she had not undergone separate general counseling. She admitted, however, that when she met with the social worker in November 2006, the social worker had informed her that she needed to participate in general counseling.

Following further testimony from Mother, Father, and the social worker and argument of counsel, the juvenile court stated that the real issue for the parents was domestic violence that they never addressed and that Mother continued to have relationships with men that placed her children at risk. The court found by clear and convincing evidence that the parents had failed to participate regularly and make substantive progress in their court-ordered treatment plans. The court also found that the parents extent of progress toward alleviating or mitigating the causes necessitating placement had been insufficient for return of the children and that there was not a substantial probability that the children would be returned to the parents; that custody by the parents continued to be detrimental to the children; and that reasonable services had been offered to the parents. The court ordered that reunification services for the parents be terminated and that the matter be set for a section 366.26 selection and implementation hearing. The parents were informed of their appellate writ rights, and on the same day, Mother filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 8.450.

II

DISCUSSION

Mother contends the juvenile court abused its discretion in finding that she had not substantially complied with her case plan and failing to order additional reunification services. We disagree.

Pursuant to section 366.21, subdivision (f), at the 12-month review hearing, [t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.

Moreover, where the reunification period has exceeded the statutory limitation (in this case, 12 months^[2]) the juvenile court can not continue reunification services if doing so would extend services beyond 18 months from the date the children were originally taken from the physical custody of their parent(s). ( 366.21, subd. (g)(1).)

We review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) That standard requires us to determine whether there 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.)

Mother asserts that the court erred in finding that she had not substantially complied with her case plan. We find that whether or not she complied with most aspects of her case plan was irrelevant, as Mother failed to show that she had made substantive progress in her court-ordered treatment plan or that return of the children to her custody would not create a substantial risk of detriment.

Throughout the dependency proceedings here, Mother had been informed of the requirements of her service plan, had been provided with services, and had been encouraged to participate. Though she took advantage of the services provided to her, Mother was no closer to being able to protect her children in May 2007 than she was in January 2006, when they were initially removed. She had not demonstrated that she had benefited from her parenting classes as demonstrated by her actions as set out, ante. In addition, she still had not secured proper housing. At the time of the contested 12-month review hearing, she was living with and planned to marry a man who had a history of violence, substance abuse, and criminal behavior (specifically, selling methamphetamine). In fact, because of Mothers actions in Texas, Texas CPS had taken custody of Mothers newborn baby only several months prior to the 12-month review hearing in this case. The juvenile court observed Mothers history [is] complete [sic; s.c. replete?] with contact with men who place her children at risk . . . .

Despite receiving services, Mothers immaturity was apparent. She had not truly benefited from her parenting classes, as there was no evidence that she had acted in the capacity of a parental role during the dependency. Mother chose to live a great distance from her children, despite the social workers advice to the contrary, and had minimal personal contact with them. Mother claims that she had benefited from her regular and appropriate contact with her children; however, speaking to very young children on the telephone once a week hardly constitutes parenting. Therefore, the evidence supports the juvenile courts finding that Mother had failed to make substantive progress in her court-ordered treatment plan and that return of the children to her custody would create a substantial risk of detriment.

Mother asserts that the court should have extended services, as she had met the requirements for granting additional services.

Section 366.21, subdivision (g) provides that if the court does not return the child to the parent at the section 366.21, subdivision (f) hearing, the court may extend reunification services for up to six months if it finds a substantial probability that the child will be returned to the physical custody of the parent and will be safely maintained in the home within the extended period of time. In order to make such a finding, the court must find all of the following: (1) the parent has consistently and regularly contacted and visited with the child; (2) the parent has made significant progress in resolving the problems that led to the childs removal from the home; and (3) the parent has demonstrated the capacity and ability to complete the objectives of the treatment plan as well as to provide for the childs safety, protection, physical and emotional well- being, and special needs. ( 366.21, subd. (g)(1)(A), (B), (C).)

While Mother did have regular contact with the children, she did not visit them regularly, having chosen to live in Texas rather than California; neither did she come close to fulfilling the other two requirements of section 366.21, subdivision (g).

More than ample evidence exists that returning Daughter and Son to Mothers custody would subject them to a substantial risk of detriment. On the other hand, there was no evidence presented that an additional six months of reunification services would benefit the children but would mean the childrens lives were still not permanently settled. By the time of the 12-month hearing, Daughter and Son had been placed in a loving and nurturing foster home for about one year (most of Sons life). The childrens foster mother had bonded with the children and was willing to adopt them. Additional services could potentially delay the permanency plan hearing and create uncertainty over their placement. There is little that can be as detrimental to a childs sound development as uncertainty over whether he is to remain in his current home, . . . especially when such uncertainty is prolonged. (In re Sade C. (1996) 13 Cal.4th 952, 988.)

Accordingly, substantial evidence shows that there was no substantial probability that the children could be returned to Mothers custody within six months, and the court did not err in not granting Mother additional services. ( 366.21, subd. (g).)

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

KING

J.

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

^[2] Here, Daughter and Son were under the age of three when they were removed from parental custody. Section 361.5, subdivision (a)(2), governs the permissible length of reunification services for minors under the age of three. It provides: For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six month from the date the child entered foster care. A child is deemed to have entered foster care on the earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian. ( 361.5, subd. (a)(3).) The same subdivision also provides that 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 is shown at the six- and 12-month review hearings that the permanent plan for the child is that he or she will be returned and safety maintained in the home within the extended time period. (Ibid.)