Jennifer T. v. Superior Court

Filed 4/3/07 Jennifer T. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Julia Craig Kelety, Judge. Petition denied.

Jennifer T. seeks writ review of juvenile court orders terminating reunification services and setting a hearing to select and implement a permanency plan for her son, J.T., under Welfare and Institutions Code section 366.26.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2005, police officers responded to an emergency call stating Jennifer T. locked herself and her three-year-old son, J.T., in a motel room and was threatening to kill herself and the child. William Bell, the manager of the motel, told officers Jennifer had been fighting throughout the day with her sister, and J.T. was crying constantly. Bell heard the sister call 911. Suddenly, J.T. stopped crying. Bell "got a chill." He ran to the motel room and unlocked the door. Jennifer was holding J.T. off the ground by "a piece of string wrapped around his neck." According to Bell, the child was blue and his head was limp. Bell rescued J.T., who had no visible injuries and was unharmed.

Jennifer denied she threatened suicide or tried to harm J.T. Police officers recovered two lengths of braided yarn from the motel room. Jennifer said she was making a lanyard for J.T.'s pacifier. She informed officers there were two glass pipes in her motel room. The pipes contained drug residue. Jennifer was arrested for willful cruelty to a child and possession of drug paraphernalia. The officers detained J.T. at Polinsky Children's Center.

On February 15, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a two-count petition alleging Jennifer T. was unable to provide regular care for her son, J.T., because of mental illness and substance abuse. ( 300, subd. (b).) The Agency later amended the petition to include a count of physical abuse under section 300, subdivision (a).

Jennifer, then age 23, told the social worker she had used methamphetamine since she was 14 years old. She last used the drug on February 12, 2005. In November 2002, Jennifer was briefly hospitalized after J.T.'s father, Darius W., left her and she was despondent. In 2003 and 2004, the Agency substantiated child welfare referrals after Darius was arrested for domestic violence. Jennifer was later diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, major depressive disorder, recurrent, attention deficit/hyperactivity disorder, combined type, and methamphetamine dependence, in remission.

At the jurisdiction hearing, Jennifer entered a plea of nolo contendere. The court found there was a factual basis for the plea and sustained the petition by clear and convincing evidence. At disposition, the court placed J.T. with his maternal grandfather and stepgrandmother (caregivers) and ordered a plan of family reunification services for both parents. Jennifer's case plan required her to participate in domestic violence counseling, individual therapy, a parenting education program, and a substance abuse treatment program.

Jennifer completed a parenting education program while in custody on the criminal charges.^[2] She saw J.T. every other week during her incarceration. After her release, she moved out of San Diego County. She was able to visit J.T. every few weeks. The visits were supervised by the caregivers. Jennifer began a domestic violence program in September 2005, enrolled in an outpatient substance abuse treatment program in October, and started individual therapy in December. In February 2006, the Agency approved unsupervised visitation. J.T. looked forward to seeing his mother and appeared to be sad when the visits ended.

In March 2006, Jennifer completed the first of two psychological evaluations. The psychologist characterized Jennifer's personality as highly emotional, with highly         co-dependent features and very low level of insight. Emotionally, Jennifer was more a child than an adult. The psychologist stated the risk factors to J.T. in Jennifer's care included child neglect, domestic violence, Jennifer's personality disorders and denial of those disorders, and her history of substance abuse. The psychologist assessed Jennifer's ability to mitigate the risk factors as "guarded."

Jennifer successfully completed her out-patient substance abuse treatment program in May 2006, and moved back to San Diego County in June 2006. She was employed and lived in a sober living home. Jennifer told the social worker she would continue therapy, finish a domestic violence program, and submit to random drug testing. She frequently visited J.T. The caregiver reported Jennifer loved J.T. and was affectionate with him but often had to be redirected regarding parenting techniques and strategies.

In a report prepared for the October 2006 18-month review hearing, the social worker, Brian Howley, recommended the court terminate reunification services and set a hearing to select and implement a permanency plan for J.T. He opined Jennifer was not able to adequately and safely parent J.T. for an extended period.

At the contested hearing, Howley testified that Jennifer made good progress with her case plan. He based his recommendation to terminate services on the psychologist's report, the caregivers' observations that Jennifer was not ready to assume custody, and Jennifer's need for further treatment. Social worker Gerald Attia, who was assigned the case in June 2006, opined that Jennifer, despite her progress, had not yet resolved all the risks to J.T. that were present at the beginning of the case. Most notably, these included Jennifer's immaturity and level of responsibility, and inadequate parenting skills.

Dr. Robert Kelin testified he completed a psychological evaluation of Jennifer on October 5, 2006. He believed drug use, domestic violence, and maternal depression continued to be risk factors. Jennifer's past drug use was significant, and in many respects would be a lifelong problem. Jennifer's personality characteristics predisposed her to form detrimental relationships, and her recurrent depression led to poor judgment. On the positive side, Dr. Kelin stated Jennifer did very well with drug treatment and completed every program the Agency asked her to complete.

Despite the existing risk factors, Dr. Kelin could comfortably recommend placing J.T. in Jennifer's care as long as the family received significant services. In order for J.T. to be safely returned to Jennifer's care, Jennifer needed to continue with antidepressant medication and monitoring, and random drug testing. If Jennifer became involved in a relationship, then that person should be assessed for violent tendencies.

The maternal grandfather, Michael T., believed Jennifer had made progress but still had a lot of work to do to improve her parenting skills and psychological health. Michael stated that Jennifer appropriately cared for J.T. on a temporary basis but was not ready to assume responsibility for his long-term care. In particular, Jennifer had difficulty disciplining J.T.

Jennifer testified she had overnight visits every week with J.T. She had been clean and sober for 18 months and was participating in random drug tests through her sober living facility. She was seeing a therapist regularly and taking medication. Jennifer acknowledged she had problems disciplining J.T.

The trial was continued until December 5, 2006. On November 27, the Agency submitted an addendum report detailing concerns about J.T.'s safety during overnight visits with Jennifer. During one incident, Jennifer was out with J.T. at 3:00 a.m. She stopped at a gas station and allowed J.T. to climb on the roof of her van.

The court noted Jennifer's progress, her willingness to participate in the case plan and her "very consistent contact and visitation" with her son. Despite these positive steps, the court stated the issue before it was whether Jennifer was ready to be responsible for J.T. The court found Jennifer needed to have significant services in place before she would be able to safely care for J.T. The court relied on psychologist Kelin's opinion that Jennifer's problems were life-long issues. The recent incident when Jennifer was out with J.T. at 3:00 a.m. was an example of her poor judgment and lack of parenting skills. The court found there would be a substantial risk of detriment to J.T. to return him to the physical custody of either Jennifer or Darius. The court terminated reunification services and set a hearing under section 366.26.

Jennifer and Darius each filed a notice of intent to file a writ petition. On February 14, 2007, Darius's attorney notified the court there were no viable issues for writ review and he would not file a petition for writ of mandate. This court dismissed the case as to Darius on February 15. Jennifer filed a timely petition. This court issued an order to show cause and the Agency responded. The parties waived oral argument.

DISCUSSION

Jennifer contends the court erred when it did not return J.T. to her custody. She argues insufficient evidence supports the court's findings she did not make substantive progress with her case plan and there would be a substantial risk of detriment to J.T.'s safety, protection, or physical or emotional well-being if returned to her care.

The Agency commends Jennifer for her progress and participation in services but argues the court did not err when it determined Jennifer was not ready to assume the responsibility of caring for J.T. on a full-time basis.

At an 18-month review hearing, the court is required to order the return of the child to the physical custody of the parent unless the court finds, by a preponderance of the evidence, the return of the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker has the burden of establishing that detriment. ( 366.22, subd. (a).)

We review an order terminating services and setting a permanency planning hearing to determine if it is supported by substantial evidence. If substantial evidence is present, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The burden is on the petitioner to show the evidence is insufficient to support the trial court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

A parent's compliance and progress with his or her case plan is a pertinent consideration at a section 366.22 hearing. " 'In determining whether it would be detrimental to return the child at the 18-month review, the court must consider whether the parent participated regularly in any treatment program set forth by the plan, the "efforts or progress" of the parent, and the "extent" to which the parent "cooperated and availed himself or herself of services provided." [Citation.]' " (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341, citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." ( 366.22, subd. (a).)

Here, the court recognized Jennifer complied with her case plan and made progress toward mitigating the risks to J.T. were he returned to her care. The record shows that, in addition to completing the course work the Agency required, Jennifer successfully completed substance abuse treatment and remained sober throughout the dependency proceedings. The court stated, "[i]n considering the issue I'm mindful of the great progress that [Jennifer has] made in services in terms of her willingness to work in services and do what the Agency's asked and her very consistent contact and visitation with the child."

Despite a parent's progress in resolving the risks that led to the dependency, the underlying question posed at the 18-month review hearing is whether substantial evidence supports the juvenile court's finding the child's return to parental custody would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. ( 366.22; Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1345.) When the trial court considers whether to deprive a parent of custody, it is concerned about the parent's "grasp of the important parenting . . . concepts such as a child's need for security, adequate nutrition and shelter, freedom from violence, proper sanitation, healthcare, and education." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790.)

Here, the court recognized Jennifer's hard work and compliance with services, but found she did not make substantive progress in alleviating the mental health issues that contributed to J.T.'s removal from her care. We resolve all conflicts in the evidence and in reasonable inferences from the evidence in favor of the prevailing party. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Removal was necessitated by Jennifer's physical abuse of J.T., which could have led to a tragic outcome were it not for the timely intervention of a stranger. Psychologist Kelin testified the seriousness of Jennifer's past drug use and domestic violence, and her personality characteristics and recurrent depression continued to be risk factors, and in many respects would be lifelong problems. Jennifer would need significant services in place before J.T. could be safely returned to her care. Social worker Howley did not believe J.T. could safely be returned to Jennifer given her continued need for mental health treatment.

In addition to her need for further resolution of mental health issues, the record shows Jennifer still lacked the basic parenting skills and maturity to make responsible, competent decisions about J.T.'s care. Jennifer's father believed Jennifer had worked hard but was not ready to assume responsibility for J.T. on a full-time basis. Social worker Attia was concerned that Jennifer's immaturity and inadequate parenting skills created a serious risk of detriment to J.T. In October 2006, Jennifer had J.T. out at 3:00 a.m. instead of at home, asleep in his bed. The record shows that after 18 months of services Jennifer did not have the judgment necessary to ensure J.T.'s safety and protection in her care.

Despite Jennifer's progress and her cooperation with services, substantial evidence supports the finding she did not make the substantive progress necessary to ensure J.T.'s safety, protection and physical well-being in her care. The court did not err when it found that returning J.T. to Jennifer's custody would create a serious risk of detriment to the child. ( 366.26, subd. (a).)

DISPOSITION

The petition is denied.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] Unless specified, statutory references are to the Welfare and Institutions Code.

^[2] The resolution of the criminal charges and the length of time Jennifer was incarcerated are not included in the record.