Rachel W. v. Sup. Ct.

Filed 4/4/07 Rachel W. v. Sup. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Holly W. (born in June 2004) was made a dependent of the Del Norte County Juvenile Court in October 2005. (Welf. & Inst. Code,  300.)^[1] Pursuant to rule 8.452 of the California Rules of Court, her mother, Rachel W., has filed a petition for extraordinary writ review, challenging the juvenile courts denial of her demurrer to the section 387 supplemental petition and its order setting a hearing to select and implement a permanent plan pursuant to section 366.26. We deny the petition.

Background

The minor was placed into protective custody and a section 300 petition was filed in August 2005. The petition alleged that the minor came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition alleged the minor was at risk of harm due to the mothers substance abuse and due to the condition of the home, in which drugs were used and sold. The petition also alleged a health and safety risk to the minor due to the presence throughout the house of drugs and drug paraphernalia, garbage, cigarette butts, small beads and other chokeable objects, old food, and debris. The petition stated the mother and the minors father, who were married at the time, were both incarcerated in the Del Norte County Jail. The mother was charged with willful cruelty to a child and possession of a controlled substance, and the father was being held for violating his parole that had been imposed for drug-related charges.

The Del Norte County Department of Health and Social Services (Department) prepared a jurisdiction report filed September 7, 2005, recommending the court find the allegations in the petition to be true. A disposition report was filed on September 20, recommending the minor be declared a dependent of the court and family reunification services be ordered for the family. On October 7, the court ordered the mother to participate in and successfully complete a dependency drug court program. However, the mother submitted a forged 12-step meeting list and failed to submit to a random drug test as ordered by the court. On October 28, at a hearing with both parents present, the court declared the minor to be a dependent of the court. The father was still in custody at this time.

On November 18, 2005, after the mothers drug test showed positive for drugs, the court suspended the drug court program and ordered the mother to report to a residential drug treatment facility called Skyway House. The court stated it would consider allowing the minor to join the mother at the facility if the mother received excellent reports. A drug and alcohol assessment, a mental health appointment, and parenting classes were scheduled for the father, who was no longer in custody.

The mother received several favorable reports from Skyway House, and on December 16, 2005, the court approved the recommendation that the minor be allowed to join her mother in a trial placement at Skyway House, so long as the mother remained in treatment. The Skyway House program was a 90-day program with an estimated date of completion of February 21, 2006. The minors father entered a 90-day treatment program at Jordan House beginning January 4, 2006.

On February 6, 2006, the mother was terminated from services at Skyway House for violating facility regulations. The interim report stated the mother used her prescription medication in excess of the recommended dosage, traded medications with another resident, and violated guidelines regarding an approved pass out of the facility. The mother was ordered to resume the dependency drug court program. The minor was returned to foster care. The father remained in the drug treatment program at Jordan House, continued to test clean from all drugs and alcohol and was reportedly doing very well.

The mother continued to struggle in the drug court program by failing to complete the required drug tests and testing positive for various drugs. The father, however, continued to make good progress in his treatment program. He consistently tested clean, was seeking employment and housing, and obtained his drivers license and an insured vehicle.

Six-Month Review Hearing

The Departments six-month status review report noted that the minors mother and father had separated. The mother continued to abuse drugs, received her fifth drug court violation, had a recent drug overdose, was using alcohol more frequently, and did not attend her mental health appointments. Meanwhile, the father successfully completed his inpatient program and parenting classes and continued to test clean from all controlled substances. The Department recommended the court continue family reunification services for the father, but terminate court-ordered reunification services for the mother. The Department recommended the mother be provided voluntary family reunification services that would allow the mother to focus on her substance abuse and mental health treatment without the added pressure of a mandatory case plan.

The six-month review hearing was held on April 14, 2006, and the court adopted the order and findings set forth in the report. The minor continued as a dependent child of the juvenile court pursuant to section 300. A 12-month review was set for August 18, 2006.

In May 2006, the Department requested that the court consider a trial placement for the minor with her father. The Department recommended the minor be placed with her father effective June 2, 2006, in response to the fathers success in maintaining regular visits with the minor and in securing a place to live, obtaining full-time employment, and remaining drug free. The court approved the trial placement with the father on June 2, 2006. The mother was present, although in custody at this hearing.

Twelve-Month Review Hearing

The status review report and case plan prepared for the 12-month review hearing recommended the minor remain a dependent of the court and remain in the care of her father under a plan of family maintenance. At the time of the report, the mother was incarcerated for a probation violation and the report noted the mothers visitation with the minor had been reduced due to her failure to show up for visits and her incarceration. The mother had not been seen at drug and alcohol services since late April 2006.

At the 12-month review hearing on August 18, 2006, the court adopted the findings and orders in the report and stated that the minor would remain at the fathers home. The court set a six-month review of the family maintenance plan for February 16, 2007.

Section 387 Supplemental Petition

On October 30, 2006, the Department filed a section 387 supplemental petition for a more restrictive placement. The petition stated that the minor had previously been in the home of her father, but on October 26, 2006, her father passed away. The petition also stated that court-ordered family reunification services for the mother were previously terminated on April 14, 2006, and at the time of the fathers death on October 26, the mother was in the Del Norte County Jail for a probation violation. The petition recommended a modified disposition for the minor of placement in a foster home. A detention report was filed and a detention hearing was held on October 31. At the hearing, the court found it had already determined the minor came within section 300, and there were no other reasonable means to protect the minor other than to detain her.

On November 3, 2006, a hearing was held for the mother to admit or deny the petition, and after some discussion regarding the type of petition filed, the mother denied the petition. A contested jurisdiction hearing was set for November 17. On November 17, the mother filed a demurrer to the section 387 petition and a motion to strike the petition. The mother argued that under the applicable facts and law, the Department should have filed a subsequent petition under section 342.^[2] The Department filed an opposition, arguing that the section 387 petition was appropriate.

A hearing on the demurrer was held on December 1, 2006. The mother was allowed to withdraw her previous denial of the petition and the court heard argument regarding the appropriateness of a section 342 subsequent petition versus the section 387 supplemental petition. The court denied the demurrer and the motion to strike. The mother then knowingly and voluntarily waived her rights and admitted that the allegations in the supplemental petition were true.

The Department filed a disposition report on December 13, 2006, recommending the court set a date for a section 366.26 hearing. The disposition hearing was held on December 29, 2006. At the hearing, the mother and the assigned social worker testified. The court then found the child had already been removed from the home of the mother and it would be contrary to the minors welfare to return her to her mothers care. The court also stated that reunification services had already been terminated for the mother and found it would not be in the best interest of the minor to again provide family reunification services. The court set a hearing to select and implement a permanent plan for April 20, 2007.

The mother filed a notice of intent to file a writ petition on January 2, 2007, and a petition for extraordinary writ on February 26, 2007.

Discussion

I. The Department Correctly Filed a Section 387 Petition

In her writ petition, the mother argues the Department incorrectly filed a section 387 supplemental petition as opposed to a section 342 subsequent petition, and the court erred in overruling her demurrer and denying her motion to strike the section 387 petition. She contends she would have had additional time to complete the reunification process had a section 342 petition properly been filed. We disagree.

Section 387 provides, in relevant part, (a) An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition. [] (b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . .

Section 342 provides, In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations. [] All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.

The Court of Appeal has previously noted, subsequent and supplemental petitions are different. A subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child. [Citation.] A supplemental petition is filed, inter alia, when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order. [Citation.] (In re Barbara P. (1994) 30 Cal.App.4th 926, 933.)

A common example of the proper use of a supplemental petition is a family maintenance case in which the court has placed the child with a parent and the agency now believes it necessary to move the child to a foster placement. In such circumstances a supplemental petition is required unless new jurisdictional grounds are being alleged pursuant to [Welfare and Institutions Code sections] 300, 342. (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2006 ed.)  2.141[1], p. 2‑288.)

Here, the original section 300 petition alleged that the minor came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The section 387 supplemental petition did not allege new or additional jurisdictional grounds under section 300; instead, it merely alleged three facts supporting the Departments position that the previous disposition of the minor was no longer effective. Specifically, it noted (1) the father had passed away, (2) court-ordered family reunification services to the mother had previously been terminated, and (3) the mother was in jail on the day the father passed away.

The allegation of these circumstances was necessary to explain why the minor required a new, more restrictive level of physical custody, as the Department sought to move the minor from her previous placement with her father under the family maintenance plan back to a foster placement. The facts alleged were not new, independent allegations of dependency under section 300, which would have required a section 342 subsequent petition. The Department was correct to file the section 387 supplemental petition and the juvenile court properly overruled the mothers demurrer and denied her motion to strike.

II. Any Error in the Type of Petition Filed Was Harmless

In any event, any error in filing a supplemental rather than a subsequent petition in this case would be harmless because the courts discretion in awarding additional reunification services for the mother would not differ. In Barbara P, the petitioner argued the trial courts finding of jurisdiction on section 342 subsequent petitions entitled her to reunification services in addition to the 18 months of services already provided to her on the original petitions. (In re Barbara P., supra, 30 Cal.App.4th at pp. 932-933.) The Court of Appeal stated that despite some distinctions between the petitions, the same rule ought to apply to section 342 subsequent petitions as it did to section 387 supplemental petitions, that is, a finding of jurisdiction on a subsequent petition should not automatically trigger a new period of reunification services. (In re Barbara P., at p. 933.)

Failure to order additional reunification services after finding jurisdiction on a [section 342] subsequent petition constitutes reversible error only if the particular facts of the case demonstrate an abuse of discretion in failing to order additional services. (In re Barbara P, supra, 30 Cal.App.4th at p. 934.) Here, the mother does not argue the court abused its discretion in refusing to order further reunification services, and, regardless, we find the juvenile court was reasonable in not reordering such services. According to the Department reports, the mother had previously been referred to all services the Department had to offer, including inpatient drug treatment, parenting classes, one-on-one counseling, mental health providers, and substance abuse treatment providers. She was unable to succeed in any of these programs and the court terminated the mothers reunification services and instead provided only voluntary reunification services. However, the mother continued to struggle with her substance abuse problem and was in custody during the June 2, 2006 interim review hearing on charges of possession of narcotics, child endangerment, and three failures to appear in court. She was released June 8, but was arrested again for a probation violation on July 21, again on August 25, and again on October 6. A probation officer reported the mothers drug use worsened after the fathers death on October 26, she tested positive for several controlled substances, and she would again be placed in custody. At the time of the 12-month review hearing the mother had not been seen at drug and alcohol services since April 2006, and a later Department report stated the mother only minimally participated in any services. Under these circumstances, the court could reasonably have concluded further reunification services would not be appropriate. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762-764.)

Disposition

The petition is denied on the merits. (Cal. Const., art. VI,  14; Kowis v. Howard (1992) 3 Cal.4th 888, 894;  366.26, subd. (l) [subsequent appeal challenge barred].) Because the section 366.26 hearing is set for April 20, 2007, our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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

^[2] The text of sections 342 and 387 is quoted in the Discussion, post.