Y.C.. v. Superior Court

Filed 9/25/07 Y.C.. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Charlotte A. Wittig, Commissioner.

Y.C., in pro per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel and P. Jarett Cline, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Vartabedian, A.P.J., Harris, J., and Levy, J.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings in this case first arose in Kern County in January 2004 when petitioners five eldest children, then ranging in age from 2 to 12 years, were taken into protective custody after petitioner left them with a relative without making provisions for their care. The juvenile court adjudged the children dependents and, at an uncontested 18-month review of reunification services in July 2005, returned the children to petitioners custody under family maintenance. In December 2005, the court dismissed dependency jurisdiction and awarded petitioner sole legal and physical custody. However, petitioner continued to neglect her children. In September 2006, the Fresno County juvenile court ordered the children removed from petitioners custody after she left them with a relative and failed to return. The court ordered petitioner to complete a mental health evaluation and domestic violence assessment and follow any recommended treatment, complete a course in parenting and participate in weekly supervised visitation. The children were placed in three separate Fresno County foster homes. In December 2006, the case was transferred to Tulare County.

In January 2007, petitioner gave birth to her sixth child, a son D. Because petitioner and D. tested positive for methamphetamine, D. was taken into protective custody and placed in a foster home for drug-exposed infants. The Tulare County juvenile court ordered D. detained and, at a combined hearing for all six children in February 2007, ordered the social services agency (agency) to provide petitioner another three months of services for the oldest five children and to implement a plan of reunification for petitioner and D. Petitioners reunification plan for D. required her to complete mental health and substance abuse evaluations and parenting training and to submit to random drug testing.

However, petitioner did not comply with her court-ordered services yet reported that she had. During a telephone conversation in May 2007, petitioner told the caseworker that she completed a psychological evaluation and was making monthly payments to cover the cost. She also stated she was attending parenting and domestic violence classes and attended a placement orientation for substance abuse treatment. In reality, petitioner had not completed any evaluations or enrolled in any classes.

In addition, petitioner was not drug testing or regularly visiting the children, which she attributed to her employment as a foreman supervising field laborers from 4 a.m. to 6 p.m. However, this turned out to be false as well. According to petitioners employer, she was not a foreman and she worked from 6 a.m. to 2 p.m. The agency reported petitioners noncompliance and deception in its status report to the court and recommended the court terminate her services as to all six children at the next review hearing.

The next review hearing was conducted in June 2007 as a combined contested 6 and 12-month review of services. Petitioner challenged the agencys contention she failed to comply with her court-ordered services and testified that she had been attending biweekly parenting classes since February 2007 and attended 9 of the required 20 sessions.

Petitioner also testified that she completed a psychological evaluation in Fresno but could not remember when she completed it or who conducted it. She claimed she attempted to schedule a psychological evaluation in Tulare several months before the review hearing but did not after she was told she had to pay for it. She denied telling the caseworker that she completed the psychological evaluation and was paying a monthly fee for it.

Petitioner further testified that she completed 2 sessions of the substance abuse evaluation in March 2007 and then attended 4 sessions in a 12-session group therapy program, which she believed satisfied both her domestic violence and substance abuse counseling case plan requirements. However, she could not remember when she attended her first group session or other details about the sessions she attended. She also testified that she could not drug test because, as a field laborer, she worked in different locations, requiring her to leave for work early in the morning and causing her to return late in the evening.

Following testimony, county counsel argued petitioners testimony contradicted the evidence provided in the agencys report and asked the court to discredit her testimony. Before county counsel could finish his argument, petitioner voluntarily left the courtroom.

Minors counsel concurred petitioners testimony was not credible and urged the court to follow the agencys recommendation. Petitioners attorney asked the court to accept petitioners testimony that she completed some parenting classes and a psychological evaluation, that she was attending group therapy sessions, completed two substance abuse evaluation meetings and was precluded from drug testing because of her work hours.

At the conclusion of the hearing, the court commented that petitioners testimony was not credible because of the numerous inconsistencies it contained. The court specifically noted that petitioners characterization of her employment was not supported by her employer. The court terminated petitioners reunification services and set a section 366.26 hearing as to all six children.

DISCUSSION

Petitioner argues the juvenile court erred in terminating her reunification services. More specifically, she claims there was sufficient evidence she complied with her reunification services to warrant a continuation of services. She also claims county counsels request that the court discredit her testimony prejudiced her case. We disagree.

The juvenile courts determination whether to continue reunification services depends upon the stage of the proceedings. In this case, the courts decision to terminate services was made at a combined hearing to review 12 months of services for petitioners five oldest children and 6 months of services for D. With respect to D., the court was required to continue services to the 12-month review hearing if there was a substantial probability D. could be returned to petitioner within another six months. ( 366.21, subd. (e).) With respect to D.s siblings, the court had discretion to continue services up to a maximum of 18 months if there was a substantial probability they could be returned to petitioners custody within that extended period of time. ( 361.5, subd. (a).) A substantial probability of return exists when all three of the following circumstances are present: (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 child's safety, protection and well-being. ( 366.21, subd. (g)(1).)

On review, we determine whether substantial evidence supports the juvenile courts order terminating reunification services. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) In so doing, we acknowledge the juvenile court as the sole arbiter of issues of fact, weight and credibility. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Consequently, in the presence of substantial evidence, we will not disturb the juvenile courts determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

In this case, there is no evidence to support a substantial probability of return. On the contrary, evidence that petitioner did not regularly visit her children or comply with any aspect of her reunification plan strongly militated against such a finding. Further, petitioners attempt to present evidence of her compliance caused the court to conclude she was not credible, not because of county counsels argument, but because petitioners testimony was fraught with inconsistencies. On this record, we conclude substantial evidence supports the juvenile courts order terminating petitioners reunification services and 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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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.