Yolanda A.v. Superior Court

Filed 4/5/07 Yolanda A.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Yolanda A., in pro. per., for Petitioner.

No appearance for Respondent.

James N. Fincher, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

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 issued at a contested review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her four sons, F., A., S. and I. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings were initiated in July 2005 by the Madera County Department of Social Services/Child Welfare Services (department) after petitioner and newborn I. tested positive for methamphetamine. I., along with then four-year-old F., two-year-old A., and 17-month-old S., were removed from petitioner and their father, Francisco, and placed in foster care.

The juvenile court sustained allegations petitioner and Franciscos drug abuse placed the children at risk of harm and ordered reunification services for both parents designed to help them attain sobriety. However, both parents continued to use drugs and Francisco disappeared after arrests for domestic violence and drug possession. Consequently, at a contested six-month review hearing in March 2006, the juvenile court found the children constituted a sibling group, terminated reunification services for petitioner and Francisco and set a section 366.26 hearing.

Petitioner initiated extraordinary writ proceedings from the juvenile courts setting order, claiming she did not receive reasonable services and the court erred in terminating her services after six months. This court upheld the juvenile courts reasonable services finding but granted relief on other grounds (F049929). In April 2006, while writ proceedings were pending, petitioner relocated to Washington State and entered outpatient drug treatment.

Upon receipt of this courts opinion, the juvenile court conducted a hearing in June 2006 and reinstated reunification services for petitioner. The court also denied petitioners request to transfer the case to Washington.

Petitioners new reunification plan required her, in part, to demonstrate the ability to remain drug free. To that end, the plan allowed her to continue drug treatment in Washington and required her to continue drug testing. It also required her to participate in domestic violence and parenting programs and attend weekly Narcotics Anonymous (NA) meetings. It further required the department to arrange visitation twice a month and transport petitioner to the visits.

Petitioner remained in Washington until August 2006. During that time, she tested positive for marijuana and was terminated from two drug treatment programs for noncompliance. She also declined visitation even on one occasion when she was in Madera for a court appearance. She claimed the distance and her employment were prohibitive.

In mid-August 2006, petitioner returned to Madera and moved in with her mother. That same month, she tested positive for methamphetamine and entered her third treatment program. Though her drug screens after August were negative, her attendance at individual therapy and group sessions was marginal and she was reportedly not progressing in her recovery. In addition, she was suspected of falsifying her attendance at NA meetings. In November 2006, petitioner entered her fourth drug treatment program.

By the six-month review of services under petitioners new plan, she had leased an apartment, completed domestic violence counseling, nearly completed her parenting class and regularly visited the children subsequent to her return to Madera. However, in the departments opinion, she had not demonstrated the ability to remain drug free. In addition, all four children were placed together with foster parents who wanted to adopt them. Consequently, the department recommended the court terminate reunification services and proceed to permanency planning.

In January 2007, at a contested review hearing, petitioner argued she made significant progress in her case plan after she returned to Madera. Petitioners drug treatment counselor testified her attendance was good and she had made progress in the prior three to four months. The counselor estimated petitioner would need up to another six months of treatment.

Following testimony, petitioners attorney argued petitioner made significant progress in her case plan and she was denied reasonable services because she did not receive services while the writ proceedings were pending. The court disagreed, finding petitioner was provided reasonable services but failed to make significant progress in completing her reunification plan. Consequently, the court terminated reunification services and set the section 366.26 hearing. This petition ensued.

DISCUSSION

I. Petitioner waived her right to challenge the juvenile courts

order denying transfer of the case to Washington.

Petitioner argues the juvenile court erred in not transferring her case to the county in Washington in which she resided. Section 375 permits the juvenile court in its discretion to transfer a dependency case to the county of a custodial parents residence if it determines that the transfer will protect or further the childs best interest. (Cal. Rules of Court, rule 5.610(e) [formerly rule 1425(e)].) The juvenile courts decision under section 375 is directly appealable. (Rule 8.400.) On appeal, we review the courts decision for abuse of discretion. (In re J.C. (2002) 104 Cal.App.4th 984, 993.)

In this case, petitioner did not appeal from the courts order denying her request to transfer the case. Consequently, the courts order is final and binding and not subject to our review. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)

However, even if we were to reach the merits of petitioners claim, we would find no error. The juvenile court refused her request because she had only recently moved to Washington and there was no evidence that her move was permanent. Moreover, she provided no evidence that a transfer of the case would serve the childrens best interests. Therefore, there is no basis for concluding the juvenile courts decision was an abuse of discretion.

II. The juvenile court properly terminated reunification services.

Petitioner argues the juvenile court erred in terminating reunification services because the services provided were not reasonable and because she substantially complied with the services ordered. We disagree.

Californias juvenile dependency system contemplates a maximum reunification period of 18 months calculated from the date the child was removed from parental custody. ( 361.5, subd. (a)(3) & 366.22, subd. (a).) A juvenile courts statutory options at the 18-month review are to either restore custody of the dependent child to the parents, or terminate reunification services and refer the matter for a section 366.26 hearing. ( 366.22, subd. (a).) Further, while substantial compliance is not a basis for continuing reunification services beyond 18 months, the juvenile court nevertheless has the discretion to extend services in special cases-namely, if (1) no reunification plan was ever developed for the parent; (2) the court finds reasonable services were not offered; or (3) the best interests of the child would be served by a continuance of the 18-month review hearing. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)

In this case, by the review hearing in January 2007, 18 months had elapsed since petitioners children were removed from her custody in July 2005 and she does not dispute that. Rather, she argues the 18-month period was tolled for the several months writ proceedings were pending. Therefore, she claims, she did not technically receive 18 months of services.

Petitioners tolling argument fails because as long as a child remains a dependent of the juvenile court, which petitioners children were throughout the period under review, the running of the reunification period does not toll. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1462.) Therefore, the hearing conducted in January 2007 was an 18-month dependency review.

That being the case, the court had no choice but to terminate reunification services unless, as petitioner argues, the department failed to provide reasonable services and visitation while she was in Washington. Services are reasonable if they target the problem(s) necessitating the childs removal from parental custody and if the department made reasonable efforts to help the parent comply. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

Here, petitioner voluntarily enrolled in a substance abuse program in Washington, which the court incorporated into the reunification plan it ordered in June. Having accepted the plan as ordered and failing to challenge it by direct appeal, petitioner waived any claim that the services identified in the plan were unreasonable. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) Notwithstanding waiver, she fails to show and there is no evidence on the record that the services ordered were not reasonable in light of her circumstances.

Further, with respect to visitation, the appellate record does not support petitioners contention the department failed to facilitate visitation while she lived in Washington. On the contrary, the department repeatedly attempted to arrange visitation but petitioner declined even when she was in Madera. Based on the foregoing, we concur petitioner was provided reasonable services.

Finally, there is no evidence the best interests of petitioners children would be best served by continuing reunification services beyond 18 months. After 18 months of reunification, petitioner had only begun her recovery process. Meanwhile, her children were placed together in an adoptive home to which they were adjusting well.

Given the facts of this case and the posture of the dependency proceedings, we conclude the juvenile court properly terminated reunification services and set the matter for permanency planning. Accordingly, we find no error.

DISPOSITION

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

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^*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.