Shantel J. v. Super. Ct.

Filed 8/16/07 Shantel J. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Nadine Salim, for Petitioner.

No appearance for Respondent.

Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter J. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner suffers from a mental disorder, which in part, manifests in paranoia and unpredictable moods. She also has an extensive history (over 18 years) of crack cocaine use. Not surprisingly, concerns were raised about J.s safety and well-being within a day of her birth in January 2006. Hospital staff reported petitioner and J. tested positive for cocaine and petitioner exhibited odd behavior, which included anger and agitation. Because petitioner had the assistance of her mother and agreed to voluntary services, J. was not removed from her custody at that time.

Over the ensuing eight months, the social services agency (agency) received reports that petitioner did not want J., that J. looked at her weird and that she did not have any food for J. In September 2006, then eight-month-old J. was finally removed from petitioners custody and placed in foster care after J. touched a curling iron and burned her hand. Following J.s injury, petitioner was heard to say J. needed to learn a lesson.

In November 2006, the juvenile court exercised dependency jurisdiction over J. and ordered six months of reunification services consisting of substance abuse, mental health and psychotropic medication assessments, a parenting education program, random drug testing and two psychological assessments to determine whether petitioner could benefit from reunification services. The court denied reunification services for J.s alleged father and set a six-month review hearing for April 2007.

The six-month review hearing was continued several times and conducted as a contested hearing in June 2007. Meanwhile, petitioner resisted taking medication or participating in services. Petitioner had not begun parenting classes, refused psychological counseling and was inconsistent in visiting J.

In late October 2006, petitioner entered residential dual diagnosis drug treatment but was discharged several weeks later after she slapped a peer in the face, attempted to physically assault two staff members and frightened her roommates. She reentered drug treatment in February 2007 and completed it the following month but declined to participate in the next phase, day treatment. She relapsed in April 2007, promptly reentered and completed drug treatment but again declined day treatment. In mid-June, petitioner disclosed to a social worker that she relapsed on crack cocaine and was not sure she wanted further services. Ultimately, however, petitioner agreed to reenter drug treatment and a referral was made.

Also in June, petitioner completed a psychological evaluation. The evaluating psychologist opined petitioner suffers from major mental illness with significant paranoid features, which is exacerbated by her use of cocaine. The psychologist found it unlikely petitioner would receive any significant ongoing benefit from services.

With petitioners consent, the agency placed J. in the home of her maternal grandmother out-of-state. In its six-month review of dependency, the agency reported petitioners minimal progress in completing her case plan and recommended the court terminate petitioners reunification services and consider a plan of adoption.

Petitioner appeared with counsel at the review hearing in June 2007 and made offers of proof, accepted by counsel and the court, that she was compliant with her medication and did not tell the social worker in June 2007 she relapsed. County counsel made a rebuttal offer of proof that the social worker spoke with petitioner on June 11, 2007, at which time petitioner admitted to relapsing just prior to their meeting.

At the conclusion of the hearing, the court found the agency provided reasonable reunification services, but petitioner did not regularly participate or make substantive progress in them, and there was not a substantial probability J. could be returned to her custody within another six months. Consequently, the court terminated reunification services and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in finding both she failed to make substantive progress in her court-ordered services and there was not a substantial probability J. could be returned to her custody within another six months. We disagree.

At each review hearing, the juvenile court must determine whether return of the dependent child to parental custody would create a substantial risk of detriment to the childs safety, protection, or well-being. ( 366.21, subds. (e) & (f); 366.22, subd. (a).) Failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.)

Petitioner concedes her spotty performance weighs against a finding she made substantive progress but asks this court to reconsider whether she made substantive progress given the handicapping effects of her drug abuse and mental illness. In essence, she asks this court to reweigh evidence presented at the six-month review hearing that she was medication-compliant and successfully completed drug treatment. However, our role as a reviewing court is not to reweigh the evidence. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) Rather, we determine whether substantial evidence supports the juvenile courts findings and orders based on the evidence before it. (Ibid.) Moreover, petitioner does not cite this court to any authority, nor are we aware of any, that sets forth a special standard for parents such as petitioner. On the contrary, some capacity on the part of the parent to comply with an appropriate case plan is presumed. (In re Christina L. (1992) 3 Cal.App.4th 404, 415.)

In light of the evidence and the principles set forth above, we conclude substantial evidence supports the juvenile courts finding petitioner failed to make substantive progress. While petitioner may have been medication-compliant, she was not committed to attaining sobriety. She repeatedly refused aftercare treatment and was still using cocaine at the time of the six-month review hearing. Petitioners failure to make substantive progress in treating her drug addiction constitutes prima facie evidence of detriment and warranted J.s continued removal from her care.

Given the juvenile courts inability to safely return J. to petitioners custody at the six-month review hearing, its finding petitioner received reasonable services and the fact that J. was under the age of three years when removed from petitioners custody, the juvenile court had no choice but to set the section 366.26 hearing unless it found a substantial probability J. could be returned to petitioners custody within another six months. ( 366.21, subd. (e).) Such a finding requires the court to make three affirmative findings: (1) the parent regularly visited the child; (2) the parent made significant progress in resolving the problem prompting removal of the child; and (3) the parent demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and well-being. ( 366.21, subd. (g)(1).)

Petitioner does not cite this court to any evidence to support her contention a substantial probability of return existed and the appellate record is devoid of any such evidence. In fact, the record reflects visitation was inconsistent and petitioner was still using cocaine. Further, petitioners capacity and ability to complete her services and provide a safe home for J. were at best dubious given her resistance to services and unlikelihood of benefiting from them. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.

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