Vanessa V. v. Superior Court

Filed 7/23/07 Vanessa V. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Monica Cazares for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Phebe W. Chu, Deputy County Counsel, for Real Party in Interest.

Petitioner Vanessa V. (mother) is the mother of Elena M. (child), a dependent minor born in August 2004. In this petition, mother challenges the juvenile courts decision at the jurisdiction and disposition hearing on a supplemental (Welf. & Inst. Code, 387)^[1] dependency petition to remove the child from her custody, terminate reunification services, and set a section 366.26 permanent plan hearing. Specifically, mother argues: 1) there was not clear and convincing evidence of a substantial risk of danger to the child if left in mothers custody; and 2) there was not clear and convincing evidence that the minors physical health could be protected only by removal from mothers custody. As discussed below, we reject mothers contentions and deny the petition.

Procedural History

The Department of Childrens Services (DCS) initially removed the child from mothers custody on July 26, 2005. The police responded to a domestic dispute at the maternal grandmothers residence. Mother had brought the child to visit with the maternal grandmother. However, because mother was under the influence of illegal drugs, the maternal grandmother was trying to prevent her from leaving with the child in mothers car.

Mother admitted to police that she had been smoking methamphetamine the previous two days and marijuana earlier that same day. Mother also stated she had an active warrant from another county after completing a drug rehabilitation program about two years prior, but failing to return her paperwork to the court. Police arrested mother for being under the influence and on the outstanding warrant. The maternal grandmother also had an outstanding warrant for driving under the influence from 1999, so DCS removed the child and placed her in foster care.

At the detention hearing on July 28, 2005, the juvenile court ordered the child detained and authorized reunification services. The court also directed the social worker to reassess the maternal grandmother for placement. The child was placed with the maternal grandmother on August 11, 2005.

The jurisdiction and disposition hearing was continued numerous times so the two possible fathers, one of whom (mothers ex-husband) was serving in the military in Iraq, could be notified. At a pretrial settlement conference held on January 19, 2006, the identity of the childs father was established,^[2] and both mother and father signed a waiver of rights. The juvenile court declared the child dependent pursuant to section 300, subdivision (b), ordered reunification services for the parents and ordered the child to remain detained with the maternal grandmother.

At the six-month review hearing held on August 8, 2006, the juvenile court ordered six more months of reunification services for mother, but terminated reunification services for the childs father.

At the status review hearing held on January 24, 2007, the juvenile court followed the social workers recommendation to order the child returned to mother on family maintenance. The court also ordered mother to drug test that day, at the request of DCS. DCS believed mother was under the influence at the court hearing.

Just three weeks later, on February 15, 2007, DCS filed a section 387 supplemental petition for more restrictive placement. The petition alleged that mother had failed to drug test on January 24 and February 8, 2007, had a party at her home on February 6, 2007, at which she and others took illegal drugs while the child was at the residence, and had a history of being involved in domestic violence relationships.^[3] At the detention hearing held on February 16, 2007, the juvenile court found a prima facie case that the family maintenance disposition was not effective in protecting the child and ordered the child detained with the maternal grandmother.

At mediation, petitioner submitted on the failure to drug test allegation, but contested the allegations regarding the party and domestic violence. At the jurisdiction and disposition hearing on April 27, 2007, after hearing testimony and argument, the juvenile court found the allegations to be true and concluded that the prior disposition had not been effective in protecting the child. The court terminated reunification services and set a section 366.26 permanent plan hearing for August 27, 2007. This petition followed.

Discussion

Mother argues that the evidence does not support the juvenile courts conclusions that the child would be at risk if not removed from her custody and that the child could not be protected by reasonable means short of removal.

When DCS seeks to remove a child by filing a supplemental petition, the same standard applies as with a removal under an original petition. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077.) Section 361, subdivision (c), provides: A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . [including]: [] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . custody.

The role of the reviewing court is limited to determining whether substantial evidence (i.e., evidence that is reasonable, credible, and of solid value) supports the courts finding. (Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1078.) The reviewing court does not reweigh the evidence or reevaluate the credibility of the evidence. Even if the evidence supports a contrary finding, the reviewing court must uphold the juvenile courts finding if supported by substantial evidence and the reasonable inferences drawn from that evidence. (In reL.Y.L. (2002) 101 Cal.App.4th 942, 947.)

We conclude that substantial evidence supports the courts finding that mother continued to have a substance abuse problem between the initial removal in July 2005 and the supplemental petition in February 2007, a period of over 18 months, that this created a substantial danger to the childs physical health, safety, protection or well-being if she were returned home, and that there were no reasonable means by which the childs physical health could be protected without removing her from mothers custody.

At the time of the original removal in July 2005, when mother got into an altercation with the maternal grandmother over her attempts to drive away with the child while under the influence, mother was 21 years old and had a history of drug use since the age of 16. During the summer and fall of 2005, mother continued to state that she [has] entered various in-patient programs for her drug abuse and has failed to do so. Mother was stopped and arrested on August 15, 2005, because she was under the influence of methamphetamine while driving. Between November 2005 to March 2006, mother spent two weeks in an inpatient drug program, enrolled in an outpatient perinatal program, visited the child regularly, obtained a job and, at the end of March, got an apartment through a sober living program. However, mother relapsed in April 2006 and, because she failed to drug test, was evicted from her apartment. The maternal grandmother told the social worker in June 2006 that mother had been under the influence on at least four occasions while attempting to pick up the child for unsupervised visits.

Later in 2006, mother began to get her life together again. As of the status review report dated January 24, 2007, mother had completed most or all of her reunification services, was regularly testing negative for drugs, was visiting regularly and successfully with the child, had obtained steady employment, and was renting a home from her parents. These successes by mother motivated the social worker to recommend that the child be returned to mother on family maintenance.

However, mother again relapsed just as she had reached her goal of having the child returned to her. In fact, the social worker suspected mother was under the influence at the January 24, 2007, hearing at which the juvenile court ordered the child returned to mother on family maintenance. Mother failed to drug test on that date and again on February 9, 2007.

We conclude that the above is substantial evidence to support the juvenile courts finding that there is clear and convincing evidence that return of the child to mothers custody would entail substantial risk to the childs health or safety. Mother has not shown that she can stay off drugs and safely care for the child for more than a few months at a time. In addition, although mother argues that the childs health and safety could be protected by means other than removal, we again find the juvenile courts finding to the contrary to be well supported. At the jurisdiction and disposition hearing on the supplemental petition, Mother testified that her alternative solution to removal was placement with her either at the maternal grandmothers home or at a sober living home. However, mother had already failed in both environments, and thus neither was a reasonable alternative to removal. Thus, substantial evidence supports the juvenile courts findings.

Disposition

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The childs father was not mothers ex-husband. The father is not a party to this writ action.

^[3] The childs father was arrested during a domestic dispute in May of 2004. Mother reported that the father slapped me around a couple of times, and thats it.