Annette E. v. Superior Court

Filed 8/17/07 Annette E. v. Superior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jacqueline Lewis, Judge Pro Tem. Writ denied.

Helen Yee for Petitioner

Erin J. Riley, Childrens Law Center of Los Angeles, CLC 1, for the children

Office of the County Counsel, Raymond G. Fortner, Jr., County Counsel, James M. Owens Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Real Party in Interest.

No appearance for Respondent.

_________________________

Annette E. (mother), mother of Alyssa P. and Ariana P., petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. She seeks review of an order terminating her reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26.^[1] Mother asserts the trial court erred in failing to grant her an additional 22 days of reunification services. We deny the petition.

FACTS AND PROCEDURAL HISTORY

On November 29, 2005, the Department of Children and Family Services (DCFS) received information that Alyssa P., then three years old, and Ariana P., then one year old, had been present during an incident of domestic violence.^[2]A social worker, with the help of police officers, investigated the report. The social worker contacted mother at a hotel room. Although mother denied calling for help regarding any domestic violence, she acknowledged that she had been in an altercation with her boyfriend, Abel, on November 23, 2005. While both girls were present, Abel had pinned mother on a bed and threatened to splatter [her] brains all over the wall, apparently after mother confronted Abel about taking her possessions.^[3]Mother reported that the girls appeared fearful during the incident. Mother further indicated that, while Abel was a good man, she had found a file containing his criminal history, which stated he had been charged with lewd acts with a minor and various charges involving the use of PCP.^[4] Mother speculated that Abel took drugs in the evenings, as he was fine during the day but was very agitated after work. When reminded that she must protect her children from people who are violent and use drugs, mother was receptive, but stated she would work things out with Abel.

At the social workers urging, mother initially agreed to go to a womens shelter with the girls until she could raise enough money to return to her family in Texas. When they called the shelter for an intake evaluation, however, mother denied any domestic violence had occurred. Still, the shelter agreed to take mother in, and to send someone to meet mother and the social worker at the police station. But mother first called Abel to ask for money he owed her, engaged in a heated conversation with Abel, then changed her mind and refused to file a police report or go to the shelter. Mother intended to remain in the hotel room instead. The social worker thereupon detained Alyssa and Ariana.

In anticipation of a detention hearing, the social worker gathered additional information about the family. Mother stated she had six children in all, one of whom died of sudden infant death syndrome. The three older children were living with their fathers; in fact, mother claimed one of the children had actually been kidnapped by his father. Alyssa and Arianas father, Ruben P., was in prison in Texas. Rubens mother, the girls paternal grandmother, informed the social worker that Ruben was serving a five-year sentence for violating parole on weapon and drug charges. The paternal grandmother also told the social worker that when mother, Ruben, and the girls were living with her, mother and Ruben used and sold drugs. Ruben admitted as much when the paternal grandmothers 15-year-old son was found unconscious, having been given a pill by mother. The paternal grandmother also claimed that mother was wanted by Texas police on some warrants, possibly for shoplifting or for selling or using methamphetamines. The social worker determined that mother had a criminal record for failing to identify a fugitive, theft, felony possession of a controlled substance, and criminal trespassing.

On December 2, 2005, the juvenile court approved the detention. It directed DCFS to begin providing family reunification services to mother, including referrals to drug rehabilitation with random testing, parenting classes, individual counseling and domestic violence counseling. Mother was also given monitored visits with the children at DCFSs offices. On the same day, DCFS filed a section 300 petition alleging mother had placed the children at risk of physical harm and emotional damage, and had failed to protect them, by engaging in domestic violence and other criminal activity and by permitting Abel ready access to them.^[5]

In a report filed January 4, 2006, the social worker described a further interview with mother. Mother relayed to the social worker her life-long history of relationships with abusive and drug- or alcohol-addicted men. She described having been repeatedly choked and beaten, and once even hit with a car when she was seven-months pregnant. In this interview, however, mother denied Abel had ever hit her. She attributed to one of the other men in her past the reported threat to splatter her brains, which had been ascribed to Abel. Mother stated that she was not employed, but was living in a hotel room paid for by Abel. Mother also admitted extensive drug use, beginning with alcohol at age 15 and escalating through her life to methamphetamines. She, however, stated that she was enrolled in a drug rehabilitation program and wanted to reunite with Alyssa and Ariana. Although mother provided two negative drug tests, the social worker noted that mother had missed two sessions of her program during the very week of the interview. Given the fact that mother had knowingly exposed her children to violent men, and continually used drugs, the social worker recommended that Alyssa and Ariana remain in foster care.

Because the paternal grandmother in Texas expressed an interest in caring for Alyssa and Ariana, and in adopting should mother fail to reunite with them, the juvenile court ordered a study of the grandmothers home under the Interstate Compact on Placement of Children (ICPC).^[6] It further set a jurisdictional hearing for February 6, 2006. In a supplemental report prepared for that hearing, the social worker noted that mother had moved to a sober living home. She had been required to submit to two drug tests, but was unable to comply, the first time because she failed to bring identification with her to the lab, and the second time because she could not produce urine. The Texas ICPC survey of the paternal grandmothers home had been done, but no report on the results had been completed. The social worker had also received a letter from the girls father, stating his wish that the children be sent to live with his parents.

At the jurisdictional hearing, mother pled no contest to allegations that she had placed the children at risk of physical and emotional injury, had failed to protect them, and had negligently permitted Abel to have access to them. Accordingly, the juvenile court sustained the section 300 petition as to those allegations. The court ordered DCFS to continue providing family reunification services, to follow-up on the Texas ICPC report, and to initiate another ICPC study on the home of a maternal aunt identified by mother, who also lived in Texas. Mother was directed to participate in individual counseling with a DCFS approved counselor, parenting classes, a 52-week domestic violence program, and drug counseling with random testing. She was also allowed monitored visits with the girls, with no contact by Abel. A six-month review hearing was then set for July 6, 2006 (allowing time for any necessary continuances).

By March 6, 2006, mother had been terminated from her sober living home after other residents accused her of asking them to buy drugs for her. She also received a poor report from her drug rehabilitation program, as her attendance was unsatisfactory and she had missed three of fifteen drug tests. The day after she was terminated from her program, mother tested positive for methamphetamines, and did not appear for two subsequent tests. The social worker then referred mother to another program and drove her to an intake interview. Even though she was accepted into the program, mother decided not to attend. By the time of the July 6, 2006 hearing, mother had not contacted the social worker regarding whether she had enrolled in another drug program. Nor was there any indication mother had attended her required individual counseling, parenting classes or domestic violence counseling. To the contrary, on May 26, 2006, mother had reported to DCFS that her former boyfriend had come into her hotel room, beaten her, and busted her head open, requiring her to seek medical treatment. Because the telephone number mother left with DCFS was no longer working, DCFS had been unable to contact mother. Mother was visiting the children at the foster mothers home on a weekly basis; thus, DCFS left messages for mother with the foster mother, but mother still did not contact DCFS.

At the six-month review hearing, mothers counsel reported that mother was trying to be reinstated in her former drug rehabilitation program, which also provided individual counseling, because the people who accused her of seeking drugs would not back up their statements. Counsel noted that while in the program, mother had tested negative for drugs, albeit with a few missed tests. Counsel also stated that mother had gone into another program in the interim. And, DCFS had reported that the Texas ICPC study could not be completed until the proposed care givers obtained foster care licenses. Mothers counsel suggested that an additional six months of reunification services should be allowed pending finalization of the ICPC reports. The juvenile court agreed to order an additional six months of reunification services, even though it could not find that mother had made substantial progress in her case plan, or that it was likely the children could be returned to mother by the twelve-month date.^[7]

Over the next three months, mother enrolled in a drug treatment program and tested negative for drugs six times, with one missed test. Mother also completed parenting classes, and was enrolled in counseling. She started domestic violence counseling on July 18, 2006. Mother had also visited the girls regularly and successfully throughout the reunification period. However, in October of 2006, mother went to Texas to attend her mothers funeral and did not return for some time, thereby missing her visits with Alyssa and Ariana, her counseling sessions, and her regular drug tests.^[8] Mother agreed with DCFS that she was still living a transient lifestyle and was not in a position to regain custody of Alyssa and Ariana by the 12-month review set for January 4, 2007. Mother instead wanted the girls to be placed with her sister in Texas, so she could move there and continue to be near them.

Due to mothers only partially complying with her case plan, DCFS recommended that family reunification services be terminated at the 12-month hearing and adoption of Alyssa and Ariana be pursued. Mother contested that recommendation, asserting DCFSs report was incomplete. DCFS also repeatedly failed to give adequate notice of its recommendation. Accordingly, the 12-month review was twice continued, first to February 28, 2007, then to April 11, 2007. In a supplemental report dated February 27, 2007, DCFS noted that on January 31, 2007, mother had enrolled in a new substance abuse program, including individual and group counseling sessions. One of two drug tests mother had taken, however, was returned with an abnormal reading. Then, on March 13, 2007, mother was arrested for felony robbery and drug possession.^[9]

After one more continuance due to court congestion, the matter was finally heard on May 11, 2007. By that time, DCFS reported that the ICPC study on the paternal grandparents home had been completed, and they were approved to care for the children. The study of the maternal aunts home had been terminated because the home was assessed as being too high-risk.^[10] Meanwhile, mother had been released from jail in mid April, had completed 26 weeks of domestic violence counseling, and had been consistent with her substance abuse and counseling program. She was in a sober living home, and planned to stay there. She had also begun attending a 12-step program. Though she had received 17 months of reunification services by the time of the 12-month hearing, mother requested an additional period of reunification be permitted, as she believed she could complete her programs if given services to the 18-month deadline of June 2, 2007. Nevertheless, the juvenile court found that mothers compliance with her case plan had only been partial, noting the succession of programs mother had been enrolled in and her spotty record on drug testing, with frequent missed or positive tests, punctuated by mothers recent arrest. Accordingly, the juvenile court found returning the children to mother would pose a substantial risk to their safety and well-being. In fact, the juvenile court noted, mother had received almost a full 18 months of reunification services; yet there was no likelihood the children could be returned to her. It then terminated reunification services and set a section 366.26 hearing.

DISCUSSION

Mother asserts that the juvenile court erred in refusing to extend reunification services to the 18-month date. We review such decisions under the substantial evidence rule. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) In assessing whether the juvenile courts order is supported, we must also keep in mind the statutory standards for reunification periods. Section 361.5 provides that the usual length of reunification is 12 months, six months in cases involving children under three years old. ( 361.5, subds. (a)(1), (2).) Additional services up to a period of 18 months may be ordered, if it can be shown . . . that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. ( 361.5, subd. (a)(3).) The juvenile court may only extend the time period to the maximum if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period. (Ibid.) Applying those standards here, the substantial evidence supporting the juvenile courts conclusion that there was no substantial probability Alyssa and Ariana could be returned to mother even if she had been given an additional 22 days of reunification services.

Mother received a full 17 months of reunification services without ever demonstrating that she had more than partially complied with her case plan, or that there was a substantial likelihood Alyssa and Ariana could be returned to her care. Throughout those 17 months, mother managed to comply with her case plan only for short periods, usually just after a review hearing. Otherwise, mother attended her programs sporadically, moved from program to program, tested positive for methamphetamines once and routinely missed other drug tests, was accused of continued drug seeking, and reunited with an abusive boyfriend who again injured her.

As of January 2007, mother herself agreed that she was still living a transient lifestyle, and was not in a position to regain custody of Alyssa and Ariana. Just two months before the continued 12-month review hearing, mother was incarcerated on felony charges. She remained in jail for a month, released only three weeks before the upcoming hearing. Although mother thereupon undertook to comply fully with her case plan, and promised to continue doing so for another three weeks, there were sufficient doubts that her recent turn would last, and that she could safely take custody of the girls by the 18-month deadline and maintain them in her home. Evidence of mothers behavior over the previous 17 months was sufficient to show that mother had not alleviated the problems that led to the girls detention, and that mother was not in a position to regain custody of the girls so as to justify any extended period of reunification. The juvenile courts decision not to extend an extra months services to mother was supported by that evidence. Mothers petition is therefore denied.

DISPOSITION

The petition for extraordinary relief is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)

MOSK, J.

We concur:

TURNER, P.J.

ARMSTRONG, J.

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

^[2] Though Alyssa was initially reported to be two years old, her birth date was later determined to be in April 2002, making her three years old at the time of the incident.

^[3] In a later interview, the social worker spoke to a victim support worker who had received a call from mother on November 27, 2005, stating that Abel had been breaking into her hotel room and taking her things, and that there had been ongoing domestic violence between the two.

^[4] The social worker later determined that Abels criminal history included adult convictions for inflicting corporal injury to a co-habitant, willful cruelty to a child, threatening crime with an intent to terrorize, kidnapping, grand theft, grand theft auto, driving under the influence, transportation of PCP for sale, and possession of controlled substances. Abel was also arrested on suspicion of murder, assault with a deadly weapon, burglary, taking a vehicle without consent, shooting at an occupied dwelling, driving under the influence, manufacturing and possessing PCP for sale, and inducing false testimony by force. He also had numerous juvenile arrests, including one for lewd or lascivious acts against children, but he was not convicted on that charge.

^[5] The paternal grandmother had also told the social worker that, after mother left Texas with the girls, mother called her to report that Alyssa and Ariana were being sexually abused. Indeed, Alyssa and Ariana had been the subject of an earlier reference to DCFS when an unidentified caller indicated the girls were being sexually abused by a man and his brother, whom the caller believed, mother had just met. However, allegations regarding sexual abuse of the children included in the section 300 petition were later stricken as part of a plea agreement with mother.

^[6]Family Code section 7900, et seq.

^[7] Because Ariana was under three, and Alyssa was thought to be under three, there was an argument that mother was only entitled to six months of reunification services. (  361.5, subd. (a)(2); 366.21, subd. (e).)

^[8] The record is unclear as to when mother was in Texas and for how long. A DCFS report written on December 28, 2006, states that mother reported her mothers death to DCFS on October 7, 2006, and stated she was leaving California at that time. The same report states that mother had not returned as of its writing. However, a minute order dated October 26, 2006, indicates that mother appeared at an interim status hearing. Regardless, all parties agree that mother did leave California for Texas for some period of time.

^[9] Mother testified she is subject to robbery charges, but she does not dispute the social workers report that drug possession was also involved. The record does not contain any documentation from the criminal matter to clarify the point.

^[10] There was a prior child abuse referral regarding the home, and the maternal aunt had doubts about being able to protect the children from mother, reporting that mother had threatened maternal aunt and her family. DCFS did not report on the details of that threat.