Tara M. v. Sup. Ct.

Filed 3/15/06 Tara M. v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Hideo Chino, Referee. Petition denied.

Tara M., the teenage mother of Xavier S. III (Xavier), seeks extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l)^[1]; Cal. Rules of Court, rule 38.1),^[2] challenging the juvenile court's orders that terminated reunification services after six months and set the section 366.26 permanency planning hearing for Xavier. Tara contends the order must be vacated because the evidence was insufficient to support the court's finding that returning Xavier to her would create a substantial risk of detriment to the child.

We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. We have reviewed the petition on its merits and deny it.

PROCEDURAL AND FACTUAL BACKGROUND

In August 2004, Tara, who was 17 years old, gave birth to Xavier. Because Tara had a drug history and was unable to care for Xavier, a hospital hold was placed on him three days after he was born, and he was later detained in a licensed foster home.

On September 4, 2004, Agency filed a dependency petition on behalf of Xavier, alleging he was at substantial risk of harm because of Tara's substance abuse. (§ 300, subd. (b).) The petition also alleged that Tara had used methamphetamine during her pregnancy and was in custody during part of the pregnancy for violating her juvenile probation.^[3]

As part of her probation, Tara attended Teen Options, which offered parenting classes, substance abuse treatment, and academics. Tara's case manager at Teen Options said Tara complied with the program. Tara, who had 31 referrals to child protective services during her childhood, had found herself homeless at times. Before entering juvenile hall for violating her probation, Tara was residing at a shelter.

On November 8, 2004, Tara submitted to the court's jurisdiction. The court made a true finding on the petition, declared Xavier a dependent child, and placed him with Tara on the conditions that Tara reside with the maternal grandmother and not have contact with the father, Xavier S., Jr. (Father).^[4]

In 2001, Father's daughter from a previous relationship was removed from his home because of allegations of physical abuse. The daughter's injuries included multiple bruising (with three planes of impact) on both sides of her face and bilateral conjunctival petecchia, indicating possible shaken baby syndrome. The Kings County Superior Court terminated Father's parental rights as to his daughter. In talking with the social worker, Tara denied having contact with Father, but she told the foster mother that she planned to marry him.

On January 4, 2005, slightly more than a month after Xavier was placed with Tara, Agency filed a subsequent petition under section 342, alleging Xavier was at substantial risk of physical harm because of Tara's failure to adequately protect him. (§ 300, subd. (b).) The petition alleged that Xavier had bruising to his left forearm, left upper arm, right upper arm, right upper quadrant, mid-abdomen and left hip.

Tara claimed Xavier either caught his arms in the slats of the crib or moved his arms against the slats. Tara also said Xavier scratched his abdomen. A Children's Hospital physician, who examined Xavier, said his bruising was not consistent with the history provided by Tara. The physician opined the bruises were inflicted nonaccidentally.

At the January 4, 2005 detention hearing, the court detained Xavier in out-of-home care, ordered supervised visitation for Tara and authorized services. On February 17, Tara submitted to the section 342 petition, which was sustained by the court.

For the dispositional hearing, Agency submitted a case plan, which included weekly therapy sessions, continuation of participation in the Teen Options program, outpatient substance abuse treatment at Teen Options, substance abuse testing, an interactive parenting class, and tutorial services. At the contested dispositional hearing on March 14, 2005, the court found the case plan reasonable and ordered Tara to comply with it.

Tara participated in the Teen Options program, underwent therapy, and received weekly, tailored parenting instruction.

In a report to the court, Agency acknowledged Tara had made some progress, but said she was not self-sufficient or capable of providing adequate care for Xavier. During supervised visits, Tara was unable to recognize choking hazards and was unwilling to assist Xavier with walking.

At the six-month review hearing on December 7, 2005, social worker Yulaunda Greenberry testified that Tara had not made progress with her parenting skills. Greenberry said Tara only "went through the motions" in the parenting class she completed and had not "internalized" the lessons that were taught. Greenberry explained that Tara was not able to initiate proper parenting actions on her own, without prompting or direction. For example, Tara often fed Xavier food that was too large for him to consume and did not reduce the size of the pieces of food unless someone suggested she do so. On one occasion when a visitation monitor suggested that Tara cut carrots into smaller pieces to avoid a choking hazard, Tara responded that she would not feed Xavier carrots.

Agency, in conjunction with Teen Options, customized Tara's parenting education so that it would be more intensive than a typical parenting class, Greenberry said. Tara had two parenting coach instructors and received weekly treatment for three months.

Greenberry also testified that Tara had not made progress in attempts to gain housing and employment. Greenberry said Tara presented risks because of her substance abuse history, her immaturity, and her failure to internalize parenting skills.

The court found that although Tara had regularly participated in services, she had not made substantive progress. The court also found returning Xavier to Tara's care would create a substantial risk of detriment. The court terminated reunification services and set a section 366.26 hearing.

DISCUSSION^[5]

Tara contends substantial evidence does not support the juvenile court's finding that returning Xavier to her custody would create a substantial risk of detriment. However, the court's detriment finding was not key because Xavier was under the age of three years when he was removed from Tara's custody. The more pertinent inquiry in challenging the setting of the section 366.26 hearing in this case would be whether substantial evidence supported the court's finding that Tara had not made substantive progress. (§ 366.21, subd. (e).)^[6] In any event, as we shall explain, substantial evidence supported both of these findings.

In reviewing the factual findings of the dependency court, "we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

The record shows that Xavier was under the age of three years when he was removed from Tara's custody and, therefore, the court properly could schedule a section 366.26 hearing after six months of services. (§ 366.21, subd. (e).) The record further shows that despite services being provided and Tara's regular participation in the services, she did not make substantive progress.

Section 366.21, subdivision (e) requires both regular participation and substantive progress. Although availing oneself of the services and technical compliance with one's case plan is an important consideration with respect to the juvenile court's decision to continue or terminate reunifications, it is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) The most important consideration is whether the parent's progress has eliminated the conditions leading to the child's placement out of the home. (Ibid.) "[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated." (Id. at p. 1143.)

Moreover, substantive progress implies real rather than apparent progress and real progress implies progress that can be sustained. If the purpose of the reunification plan is family preservation, then the court must be able to find that the offending parent resolved the problem necessitating the child's removal and that the parent can provide for the child's safety and well-being. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343-1345.)

Despite months of parenting instruction specifically tailored for her, Tara had no insight into Xavier's needs. For example, Tara failed to recognize that large pieces of food presented a choking hazard for Xavier. Tara also did not learn that parenting includes providing for one's child and assisting the child with his or her development. When directed to assist Xavier in learning to walk, Tara would roll her eyes. These incidents demonstrated that Tara had not made substantive progress with her parenting skills.

Tara criticizes social worker Greenberry's opinion that Tara had not "internalized" her services, but Greenberry's testimony was merely another way of expressing the principles expressed by the Court of Appeal in In re Dustin R., supra, 54 Cal.App.4th 1131, as quoted above.

Tara's lack of substantive progress - as demonstrated by her failure to understand Xavier's needs and her role as a parent - also demonstrate that return to her would create a substantial risk of detriment. Other risk factors were Tara's immaturity and her drug history. The court may properly consider a parent's past conduct as well as current circumstances. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

Substantial evidence supported the court's findings that Tara had not made substantive progress and return of Xavier would create a substantial risk of detriment.

DISPOSITION

Petition denied.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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

^[2] All rule references are to the California Rules of Court.

^[3] In 2003, Tara was arrested for robbery.

^[4] Father is not a party in this writ proceeding and will be mentioned only when it is relevant to the case.

^[5] Agency argues that Tara's petition should be dismissed for failure to provide citations to the record throughout her argument. (Rule 38.1(b)(3).) Agency also argues that the petition should be denied because Tara forfeited the right to raise her substantial evidence contention by not raising it below. Notwithstanding these arguments, we will decide the petition on the substantive merits.

^[6] Section 366.21, subdivision (e) provides that at the six-month review hearing the court shall order the child, who is at least three years old, returned to the parent's custody unless the court find that the return would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child. At the six-month review hearing for children who were under three years old at the time of removal, the court may schedule a section 366.26 hearing when the parent fails to regularly participate and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).)