Samantha D. v. Superior Court

Filed 4/24/07 Samantha D. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Samantha D. seeks extraordinary writ review of a juvenile court order terminating family reunification services for her daughter C.H., and setting the matter for a permanent plan hearing. (Welf. & Inst. Code,  366.22; Cal. Rules of Court, rule 8.452.)[1] We deny the petition for extraordinary writ.

FACTS AND PROCEDURAL HISTORY

PREVIOUS DEPENDENCY

On July 19, 1994, the San Luis Obispo Department of Social Services (DSS) filed a dependency petition on behalf of three-year old C.H. DSS alleged that due to substance abuse, Samantha D. had not protected her daughter. ( 300, subd. (b).) The juvenile court sustained the allegations of the dependency petition, and C.H. became a dependent child. The juvenile court later appointed C.H.'s maternal grandmother as her legal guardian, and dismissed the dependency.

In 1997, Samantha D. completed a drug treatment program and petitioned for the return of C.H. On May 12, 1997, the juvenile court returned C.H. to Samantha D.'s care and ordered DSS to provide family maintenance services to the family.

DSS provided family maintenance services to the family in September through November, 2002; January through March, 2004; and July, 2004 through October, 2005. In March 2005, C.H. moved to her maternal grandparents' residence due to the drug abuse and domestic violence in the home that Samantha D. shared with her long-time partner, Terry R.

PRESENT DEPENDENCY[2]

On October 17, 2005, DSS filed a dependency petition alleging that due to her substance abuse and domestic violence occurring in the family home, Samantha D. had failed to protect C.H. ( 300, subd. (b).) DSS also alleged that Samantha D. suffered an aneurysm in 2000, resulting in cognitive deficits.

On October 18, 2005, the juvenile court ordered that C.H. be detained. The court later sustained the allegations of the dependency petition, continued C.H. in the care of her grandparents, and ordered DSS to provide family reunification services. The family reunification services plan required Samantha D. to obtain counseling regarding domestic violence, submit to random drug and alcohol testing, and participate in substance abuse treatment, among other things.

On April 26, 2006, Samantha D. completed a drug treatment program pursuant to a probation condition. Immediately following treatment, however, she resumed using marijuana.

On May 27, 2006, C.H.'s grandmother took her to Samantha D.'s home for a visit. Minors at the home were drinking alcohol and smoking marijuana during a birthday party. The grandmother left with C.H. Samantha D. later informed a social worker that she could not control the behavior of her (now) husband Terry R. or step-children.

On August 8, 2006, Samantha D. agreed to mediate issues involving C.H.'s dependency. During the mediation, she agreed to random drug testing and to not allow alcohol or drugs in the family home. Samantha D. stated that she was not using alcohol or drugs then because she was pregnant.

On August 9, 2006, Samantha D. gave birth to a premature infant who weighed less than two pounds. Hospital laboratory tests revealed that Samantha D. and the infant had positive tests for the presence of marijuana and methamphetamine. A hospital nurse opined that the infant's grave medical condition was consistent with exposure to methamphetamine during gestation. The juvenile court later sustained the allegations of a dependency petition regarding the infant. It also ordered that no reunification services be provided to Samantha D. or to Terry R. concerning the infant.

Samantha D. admitted smoking cigarettes and marijuana, consuming alcohol, and using methamphetamine during her pregnancy.

Several weeks following the infant's birth, Samantha D. began to participate in family reunification services. She submitted to random drug testing and participated in substance abuse treatment and "12-step" programs.

In September, 2006, Samantha D. tested positive for valium and on another occasion, marijuana. Moreover, although she does not have a valid driver's license, a social worker observed her driving an automobile with a child passenger.

Samantha D. informed a social worker that due to the aneurysm, she "often has difficulty processing information and following through with tasks." She requested assistance for her "thinking challenges" as a result of the aneurysm.

At the 12-month review hearing, C.H. testified in camera that she loved Samantha D., wanted to live with her, and hoped that the juvenile court would continue reunification services to the family. The DSS social worker testified that Samantha D. suffers from chronic drug abuse and that no substantial probability exists that she could reunite with her daughter within the next few months. The social worker stated that Samantha D. now participates in substance abuse treatment and mental health counseling and has separated from Terry R.

Samantha D. testified and admitted using marijuana and methamphetamine during her pregnancy, but stated that she is now in substance abuse treatment. She stated that she is not in a position to reunite with C.H. because she is "working on [her] recovery." Samantha D. stated that the aneurysm has caused her to become easily overwhelmed and that she cannot "multitask." She testified that she recently obtained mental health counseling.

Child Advocate Pamella Wood testified that Samantha D. now accepted responsibility for her substance abuse. She opined that further family reunification services would be beneficial. Wood also opined that a return of C.H. to Samantha D. within the next two months would be "premature."

The juvenile court found that Samantha D. had not sufficiently progressed with family reunification services. It terminated reunification services and set the matter for a section 366.26 permanent plan hearing. In ruling, the juvenile court stated that a substantial risk of detriment to C.H. existed if she returned to Samantha D.'s custody. The court also found there was no substantial probability that C.H. could be returned to Samantha D. within eighteen months of her detention.

Samantha D. seeks an extraordinary writ vacating the juvenile court's order and contends that: 1) return of C.H. to her custody does not present a substantial risk of detriment to her daughter's welfare; 2) the juvenile court did not state a factual basis for its finding that return was detrimental, pursuant to section 366.21, subdivision (f); 3) the juvenile court did not make a finding that reasonable reunification services had been provided.

DISCUSSION

I.

Samantha D. argues that insufficient evidence supports the juvenile court's finding of detriment to C.H. should she return to parental custody.

Section 366.21, subdivision (f), requires the juvenile court to return a dependent child to the custody of his parent unless, by a preponderance of the evidence, the court finds that return of the child would create a substantial risk of detriment to him. The reviewing court reviews the finding of detriment to determine whether it is supported by substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

Here Samantha D. did not participate in her family reunification services plan until several weeks prior to the 12-month review hearing. Despite completion of a substance abuse treatment program, she continued to abuse marijuana, methamphetamine, and alcohol, and gave birth to a premature infant with positive laboratory tests for marijuana and methamphetamine. Samantha D. continued to drive an automobile despite having no valid driver's license. The DSS social worker and the child advocate agreed that there was no substantial probability that C.H. could return to her mother's custody within the 18-month time period. Samantha D. stated that she was unable to receive custody of C.H. for several months because she was in recovery for substance abuse. The juvenile court must consider her belated compliance with the family reunification services plan in light of her lack of participation during most of the dependency. (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) Sufficient evidence supports the finding of the juvenile court.

II.

Samantha D. contends that the juvenile court did not articulate a factual basis for its express finding of detriment to C.H. if she returned to parental custody.

Section 366.21, subdivision (f), requires the juvenile court to set forth a "factual basis for its decision" regarding detriment. Here the juvenile court judge stated: "I have also to make certain factual findings as to the basis why I think there is a substantial risk of detriment. . . . With your history with drugs, with your history of relapse, history of domestic violence . . . [p]rior contact of C.H. with the dependency system, again, these are factors that I have tried to evaluate and determine whether or not they would be a substantial risk on her. And frankly, probably most terribly, your conduct collectively or totally over the last year or so has not been acting in a manner consistent and with the duties of a responsible parent." The juvenile court complied with the requirements of section 366.21, subdivision (f), in its statement of reasons.

III.

Samantha D. asserts that the juvenile court did not determine that DSS had provided reasonable family reunification services to her. We disagree.

In written findings, the juvenile court found that DSS complied with the case plan "by making reasonable efforts to make it possible for the child to safely return home." The court also expressly found that the services provided were adequate. In prior hearings, the juvenile court also expressly found that DSS had made reasonable efforts to return C.H. to Samantha D.'s custody. Here Samantha D. has received family reunification or family maintenance services for most of C.H.'s life. (In re Misako R. (1991) 2 Cal.App.4th 538, 547 [requirement is of reasonable services, not perfect services provided more frequently].)

We deny the petition for extraordinary writ.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Roger Piquet, Judge

Superior Court County of San Luis Obispo

______________________________

Frederick F. Foss, for Appellant.

No appearance for Respondent, Superior Court.

James B. Lindholm, County Counsel, Leslie H. Kraut, Assistant County Counsel, for Real Party in Interest.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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

[2]C.H.'s father, Gary H., was not involved in the present dependency proceedings and is not a party to this appeal.