T.G. v. Super. Ct.

Filed 8/2/07 T.G. v. Super. Ct. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS in mandate. Sherri Sobel, Referee. Petition denied.

Childrens Law Center of Los Angeles, Sophia Ali and Jenny Cheung for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.

_________________________

Two-year-old T.G., through her counsel, seeks writ review (Welf. & Inst. Code, 366.26, subd. (l ); Cal. Rules of Court, rule 8.450)^[1]of the juvenile courts order setting a hearing under section 366.26 on August 30, 2007. We deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. Mother participates in voluntary services for 13 months after T.G.s birth.

Pamela V. (mother) tested positive for marijuana at the time of T.G.s birth in February of 2005. Mother admitted a history of substance abuse and disclosed she used methamphetamine for three months prior to learning of her pregnancy. Mother agreed to participate in voluntary family maintenance services. On March 23, 2005, mother and father entered a Salvation Army program and agreed to drug test randomly.

On April 15, 2005, father tested positive for marijuana and was expelled from the program. On May 18, 2005 mother tested positive for methamphetamine and was expelled. The CSW drove mother to a residential drug treatment program but mother declined to enroll, stating the program was too long and she did not want other drug addicts babysitting T.G. Mother was referred to a program of shorter duration but refused to enroll. Mother thereafter allowed T.G. to live with paternal grandmother.

On June 7, 2005, mother enrolled in an outpatient drug treatment program at Behavioral Health Services (BHS). On June 21, 2005, Mother enrolled in an inpatient drug treatment program at Grand Avenue Center for Dignity. T.G. was returned to mother from June 21, 2005, until September 2, 2005, when mother was expelled from the Grand Avenue program. The director indicated mother was terminated for failure to follow rules and engaging in relationships with other clients at the program; mother said the program did not accept her sexual orientation.

On September 2, 2005, mother agreed to place T.G. with paternal grandmother and on September, 28, 2005, mother signed a voluntary family reunification services agreement that required mother to enroll in a drug treatment program and submit to drug tests on demand. However, mother failed to drug test. On December 29, 2005, mother reenrolled in the outpatient program at BHS. Mother tested positive for marijuana on January 3, 2006 and March 7, 2006. Mother stated she relapsed due to housing issues.

2. Dependency court proceedings.

On March 28, 2006, the Department of Children and Family Services (DCFS) detained T.G. because of mothers continued drug use. On April 3, 2006, DCFS filed a dependency petition. The juvenile court ordered T.G. placed with paternal grandmother and granted mother monitored visitation at least three times per week. Paternal grandmother was willing to drive to Los Angeles for a three-hour visit with mother once per week. Paternal grandmother indicated the visits were going well but mother was upset that T.G. does not know her and cries for paternal grandmother.

On April 25, 2006, Mother waived her rights with respect to the adjudication of the petition.^[2] The juvenile court ordered mother to participate in drug rehabilitation with random testing, individual counseling to address case issues and ordered mother to take all prescribed psychotropic medication.

A social report prepared for July 24, 2006, indicated mother had attended individual counseling for less than a month before she had to change counselors due to conflict issues. Mother was in the process of getting a new therapist. Mother continued to participate in drug treatment at BHS. A progress letter from BHS dated July 14, 2006, indicated mother completed six months of treatment and would be entering three months of aftercare. Mother participated in group and individual sessions with a good attitude and was able to complete her treatment plan objectives. The report indicated mother receives treatment for major depression and generalized anxiety from Dr. Li, whom mother has been seeing since March of 2006. Mothers current medications include Seroquel, Lamictal and Wellbutrin. A progress letter from mothers parenting class dated June 8, 2006, indicated mother has shown growth, maturity and commitment in becoming a parent. Mother actively participates in groups, has attended 16 sessions and continues to attend on a voluntary basis.

The CSW reported mother had made some progress and generally was compliant with court orders. However, mother had not attended individual counseling consistently, she failed to appear for two random drug tests and she has not found stable housing. Mother visits T.G. once a week for about two hours on a regular basis. Visits occur only once per week due to the distance paternal grandmother must drive. The CSW indicated she would arrange for visits to occur twice per week.

A social report prepared for October 24, 2006, indicated mother was staying in a hotel but continues to search for stable housing. Mother has tested negative for drugs over the last six months, although she failed to appear for drug tests on four separate occasions. Mothers visits with T.G. have gone well. The report indicated mother has made some progress towards the case plan and she is complying with court orders. Mother was assigned a new therapist for individual counseling in July of 2006, but failed to attend counseling sessions after August 15, 2006. Mother was seeing a psychiatrist for management of her medication and was visiting T.G. regularly but continued to lack a safe and stable environment for the child. A Team Decision Meeting held on October 6, 2006, resulted in a referral to family preservation for mother.

At the six-month review hearing on October 24, 2006, the juvenile court ordered further family reunification services for mother and directed DCFS to arrange a better plan for visitation and to assist mother to obtain individual counseling. The juvenile court granted DCFS discretion to liberalize mothers visits but indicated the order for monitored visitation should not be changed without prior approval.

A social report prepared for October 30, 2006, indicated mother and paternal grandmother had agreed to two-hour visits every Wednesday in Pasadena and every Friday in Montclair.

A social report prepared for April 24, 2007, indicated that, according to a progress letter dated March 20, 2007, mother had been enrolled in counseling at BHS since July 25, 2006. Mother did not attend regularly until December 20, 2006. However, she has been making steady progress. Mother has been preparing to attend school and has obtained employment as a security guard at a shelter. Mother has been looking for stable housing, has applied for SSI and seems more committed and motivated than in the past. Mother tested negative between November of 2006 and March of 2007, but failed to appear for tests on October 11 and 27, 2006. A progress letter from Todd Zorick, M.D., dated March 23, 2007, stated mother has been receiving psychiatric treatment at BHS for more than one year, at first with Dr. Li and now with Dr. Zorick. Mother has been mostly compliant with her appointments. However, Dr. Zorick had not yet found a regimen of medication to treat mothers psychiatric condition that mother can tolerate and is motivated to take. Mothers treatment was complicated by her precarious social circumstances, especially her lack of stable housing. Dr. Zorick hoped he would identify a medication that would help mother. However, As of this writing, unfortunately, we have not been able to find a way to treat her psychiatric symptoms adequately, given medication nonadherence.

On March 30, 2007, Dr. Zorick wrote that mother suffers from bipolar illness and has not had any extended periods of a psychiatric stability during the last 18 months due to medication nonadherence. . . . Individuals with untreated and unstable mood disorders are likely to have lapses in their ability to care for themselves . . . , which has been the case for this client over much of the past year, where she has been intermittently homeless despite the involvement of social work services and the opportunity to receive public assistance. As of this time, the patient presents a minimal level of psychiatric stability given continuing problems with medication nonadherence, and thus, remains at risk for the consequences of mood instability . . . .

Regarding visitation, the report indicated mothers Wednesday visits with T.G. go well. However, mother has traveled to Montclair for the Friday visits only twice even though DCFS provided mother with transportation funds. Mother states the visits are too distant and she has appointments with her psychiatrist on Fridays.

The CSW wrote that, although mother has complied with most of the juvenile court orders and mother obtained housing as of April 1, 2007, her psychiatric condition continues to be unstable, placing the child at risk in mothers care. DCFS recommended termination of family reunification services.

A social report dated April 27, 2007, indicated Dr. Zorick last saw mother on March 27, 2007, when mother was prescribed a new medication as per mothers request. Dr. Zorick does not know if mother has been compliant because she was scheduled to return in a month but has not yet done so. Further, mother has missed her last three therapy sessions.

3. The contested 12-month review hearing.

On May 3, 2007, the juvenile court conducted a contested 12-month review hearing and received the testimony of the CSW, mother and mothers counselor at My Friends Place, Julie June.

The CSW reiterated matters found in the social reports regarding mothers compliance with her prescribed medication. The CSW indicated DCFS had not liberalized mothers visitation because mother regularly failed to attend the Friday visits. The CSW conceded mother and T.G. appear to have a good relationship and admitted mothers irregular visitation did not present a risk to the child, given that mother had been visiting every Wednesday. The CSW testified mother received a check to purchase train tickets to Montclair for visitation but provided receipts for only three trips. Julie June testified she has been working with mother for approximately four years at My Friends Place, a drop-in center for homeless and at risk children in Hollywood. June has engaged in intensive case management as well as a mentor relationship with mother. June testified mother has moved from being very guarded to a place of maturity and growth, becoming a very stable adult. The CSW has told June that mother is doing what she needed to do; that things were going well.

Mother testified she has visited T.G. consistently on Wednesdays in Pasadena but did not attend Friday visits because the funds DCFS provided for transportation were sufficient for only five trips to Montclair. Regarding medication, Dr. Li prescribed mother Trileptal and another medication that were not covered by Medi-Cal. Dr. Zorick believed mother should be on Seroquel at a higher dosage and a longer period of time. However, Seroquel made mother fuzzy during the day and, on March 27, 2007, Dr. Zorick switched mother to Depakote and Ambilify. Mother indicated the Depakote was working well. However, the Ambilify, which was prescribed for mothers insomnia, was no longer necessary in that mother worked a graveyard shift. Mother requested an opportunity to prove to the juvenile court that she could remain stable but conceded she had been on her present medical regime for only a short while.

After hearing argument, the juvenile court noted mother was only entitled to six months of family reunification services because T.G. was under the age of three years at the time of detention. The juvenile court noted mother had not yet been seen by Dr. Zorick following the change in medication one month earlier and mother has had an apartment for one month. The juvenile court noted there appears to be a positive relationship between mother and T.G. However, mother had received 13 months of family reunification services and were still in the same position we were in from the beginning of the case, other than it appears mother is not currently using drugs. When mothers counsel noted mother also had obtained stable housing, the juvenile court reiterated mother had been in her new residence for only 30 days. Then, quoting from In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, the juvenile court indicated childhood is brief and a child cannot wait for a parent to rehabilitate.

The juvenile court agreed mother had made some progress in resolving the problems which led to removal of T.G. from mothers care and that there had been consistent visitation. However, mothers compliance with the treatment of her mental illness prevented the juvenile court from finding mother was able to care for two-year-old T.G. The juvenile court terminated family reunification services but continued mothers twice weekly visitation schedule. The juvenile court ordered all visitation to be monitored until Dr. Zorick reported mother has been stable on her medication for at least two months.

The juvenile court set a hearing under section 366.26 for August 30, 2007. The juvenile court advised mother that, if she maintained her housing, visited the child, kept her job and took her medication, the juvenile court would be more than happy to see mother file a petition for modification under section 388. However, the juvenile court needed more than 30 days of you being . . . stable.

CONTENTIONS

T.G. contends the juvenile court improperly terminated family reunification services because there was a substantial probability she could be returned to mother by the 18-month date of September 28, 2007, and there was insufficient evidence to support the order terminating family reunification services.

DISCUSSION

1. Legal principles relevant to review of an order terminating family reunification services.

When a child under the age of three years is removed from parental custody, reunification services generally are not to exceed a six-month period. ( 361.5, subd. (a)(2), 366.21, subd. (e).) At a subsequent review hearing, if the juvenile court determines a child cannot be returned to the custody of her parents, it may continue the case for up to six months only if it finds there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time. . . . ( 366.21, subd. (g)(1).) In order to make this finding, the court must also find all of the following: [] (A) [T]he parent  . . . consistently and regularly contacted and visited with the child. [] (B) [T]he parent  . . . made significant progress in resolving problems that led to the childs removal from the home. [] (C) [T]he parent . . . demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.^[3]( 366.21, subd. (g)(1).)

We review an order terminating reunification services and setting a hearing under section 366.26 for substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316, 318.)

2. The evidence supports the juvenile courts finding T.G. would not be returned to mother with an additional six months of family reunification services.

T.G. contends family reunification services should have been extended because there was a substantial probability she would be returned to mother with an additional six months of services. T.G. notes the juvenile court found mothers visitation was consistent and the juvenile court expressly stated visitation was not the issue in this case.

However, the juvenile court found mother had not made significant progress in resolving the issues that led to T.G.s removal from her care. T.G. argues this finding was incorrect. T.G. notes mother had secured stable housing and she was employed as a full-time security guard, thereby eliminating two of the factors Dr. Zorick believed were causing mother to be inconsistent in complying with her medication. Also, mother was attending individual counseling at BHS and, according to a progress letter dated March 20, 2007, mother was making steady progress. T.G. argues the juvenile court minimized mothers avoidance of substance abuse, which showed mothers significant progress, given that T.G. was detained based primarily on mothers history of drug use. T.G. concludes mothers significant progress in eliminating the problem that led to T.G.s detention makes it clear that additional services should have been extended.

Initially, we note T.G. has given undue significance to the juvenile courts remark that visitation was not an issue in this case. Visitation is an important issue in every dependency case. Section 366.21, subdivision (g)(1)(A) prohibits an extension of family reunification services if visitation is not consistent and regular. ( 366.21, subd. (g)(1)(A).) During the pendency of this case, the juvenile court recognized the importance of twice weekly visitation by repeatedly ordering DCFS to facilitate mothers Friday visits in Montclair. Nonetheless, mother failed to attend more than a few of the Friday visits. Mother claimed she had psychiatric appointments on Fridays and DCFS did not pay sufficient funds for the transportation. However, mother did not have a psychiatric appointment every week and the CSW testified funds were made available to mother. Additionally, the juvenile court found mothers relationship with T.G. was that of a friendly visitor. Thus, we construe the juvenile courts remark to mean visitation was not the issue that most concerned the court in this case.

What primarily concerned the juvenile court was the report from mothers psychiatrist, Dr. Zorick, that mother had not enjoyed any substantial period of psychiatric stability during the previous 18 months because she failed to take her prescribed medication on a regular basis. Thus, mother continued to present a danger of psychiatric instability. Despite 13 months of voluntary services and 13 months of family reunification services, mother secured stable housing and had been on her current prescribed medication for only one month before the contested 12-month hearing. Based on this evidence, the juvenile court properly could conclude mother failed to make significant progress in eliminating the problem that led to T.G.s detention.

T.G. argues mother did resolve the problem that caused her detention in this case because mother stopped abusing drugs. Although mothers drug abuse was the primary basis on which the dependency petition was sustained, mothers psychiatric problems clearly were a contributing factor to mothers instability. At the time of the initial disposition, the juvenile court ordered mother to take all medication prescribed by her doctors. Thus, the problems that led to T.G.s removal cannot be viewed as resolved while mother continued to present a substantial danger of psychiatric instability. Based on that danger, the juvenile court properly could find there was no substantial probability T.G. could be returned safely to mother by the 18-month date.

Thus, consideration of both of the first two factors cited in section 366.21, subdivision (g)(1), reveals family reunification services properly were terminated in this case. Consequently, T.G.s writ petition must be denied.

3. Sufficiency of the evidence.

T.G. contends there was insufficient evidence to warrant termination of family reunification services. T.G. relies on the case of Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, which held perfect compliance with the case plan is not required. T.G. argues the evidence showed mother has completed all but one aspect of the case plan, thereby demonstrating substantial progress. T.G. asserts the focus of the juvenile court at this stage of the proceedings must be to reunify the family. To effectuate that goal, the juvenile court should have offered mother additional family reunification services. Although mother continues to suffer a psychiatric illness, mother was working with her doctor and the case workers to resolve the issues that resulted in T.G.s detention. Finally, T.G. notes she and mother enjoy a strong bond. T.G. concludes the juvenile court erred in failing to offer mother additional family reunification services.

This argument, like T.G.s first contention, lacks merit. As previously noted, the juvenile court ordered visitation for mother on a twice weekly basis. However, mother consistently failed to attend the Friday visits. Moreover, even if mother had visited consistently, section 366.21, subdivision (e) requires the juvenile court to find both regular participation and substantive progress before it extends family reunification services beyond six months for a child under the age of three years at the time of detention. Although mother availed herself of services and partially complied with the case plan, this is not determinative with respect to the juvenile courts decision to continue or terminate reunifications. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) Rather, the juvenile court must be able to find the offending parent resolved the problem necessitating the childs removal and that the parent can provide for the childs safety and well-being. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pp. 1343-1345.) Here, mothers continuing psychiatric instability prevented such a finding. Consequently, we conclude substantial evidence supports the juvenile courts order terminating family reunification services and setting a hearing under section 366.26.

DISPOSITION

The petition for extraordinary writ is denied. The decision is final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. KITCHING, J.

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

^[2] As sustained with respect to mother, the petition alleged mother has a history of substance abuse and is a frequent abuser of methamphetamine and marijuana, mother used illicit drugs during her pregnancy with T.G., mother had a positive toxicological screen for marijuana at the time of T.G.s birth and mother had a positive toxicological screen for methamphetamine three months after T.G.s birth.

^[3] The juvenile court may also select this option if it finds reasonable services have not been provided to the parent . . . . ( 366.21, subd. (g)(1).) However, the reasonableness of the services provided are not in issue in this case.