Jennifer B. v. Super. Ct.

Filed 10/11/07 Jennifer B. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Jane Cardoza, Judge.

Jennifer B., in pro per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Harris, A.P.J., Levy, J., and Cornell, J.

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 six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her son C. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

The sole issue raised in this writ petition is whether the Fresno County juvenile court erred in not transferring jurisdiction of this dependency case to Kings County. The circumstances which prompted juvenile court intervention occurred in September 2006 when then six-month-old C. was dropped off at a fire station in Fresno by his alleged father Alex. Alex explained that he picked C. up from petitioner in Lemoore after she told him she could no longer care for C. After deciding he could not care for C. either, he drove him to the fire station.

The Fresno County Department of Children and Family Services (department) took C. into protective custody and placed him in a foster home in Fresno County. Petitioner contacted the department several days later and denied abandoning C. to Alexs custody. Instead, she claimed she was planning to move to Colorado and asked Alex to care for C. for several days while she traveled there. However, she was called back to work before she left California.

This was not petitioners first experience with child protective services. Approximately six years previously, petitioner gave birth to a son M. who tested positive for phencyclidine (PCP) and marijuana at birth. Petitioner completed court-ordered family maintenance services in Kings County and dependency was dismissed in 2002.

M. remained in petitioners custody and she claimed no further drug use.

Given the unusual circumstances of C.s abandonment as well as petitioners history of drug use and refusal to drug test, the department declined to return C. to petitioners custody and instead filed a dependency petition alleging petitioner and Alex left C. without provision for support. ( 300, subd. (g).) In its detention report, the department informed the court petitioners permanent residence was in Lemoore (Kings County) and recommended the court transfer the case to Kings County.

In September 2006, the juvenile court ordered C. removed and set the jurisdictional hearing. The court also ordered the department to assess C.s maternal grandmother for placement and to refer petitioner for services. The department referred petitioner for a parenting class, substance abuse and mental health evaluations, and random drug testing.

Meanwhile, the department was working toward returning C. to petitioners custody and seeking dismissal of the case conditioned on petitioners ability to provide C. a suitable home. Petitioner represented that she lived with her parents in Lemoore. Consequently, on the departments motion, the court continued the jurisdictional hearing to allow the department to assess petitioners parents home.

After the caseworker attempted to inspect the home, she concluded that petitioner did not live there. A man answered the door and stated the house belonged to petitioners sister. He allowed the caseworker to wait outside while he contacted petitioner who drove up 10 to 15 minutes later. According to the caseworkers description of the ensuing events, petitioner was angry and belligerent from the moment she exited her vehicle. Petitioner did not have a key to the house and was angry that the caseworker asked to see the bedroom set up for C. The male let petitioner and the caseworker in the home and petitioner begrudgingly allowed the caseworker to peer into a dark bedroom where a young girl was sleeping. Petitioner did not have a crib or baby supplies for C. and, when the caseworker pressed petitioner about her living arrangement, petitioner became belligerent and said she had not moved in yet. When the caseworker asked when she would move in, petitioner stated she was already living in the house. As the caseworker began to leave, petitioner yelled profanities at her.

After her attempt to verify petitioners residence and assess her home, the caseworker contacted the Kings County Human Services Agency (agency) and requested a social worker conduct a courtesy check of petitioners sisters home to ensure petitioner had adequate supplies to care for C. The agency attempted a home visit but petitioner refused to allow anyone from the agency into her home. She also refused to drug test for the agency or to accept voluntary family maintenance.

In light of petitioners refusal to drug test and to cooperate with the department and her inability to provide C. a suitable home, the department amended the dependency petition and recommended the court find under section 300, subdivision (b) that petitioner could not properly care for C.

Petitioner challenged the subdivision (b) allegation and the court ordered the department to mediate jurisdiction. Mediation was conducted in January 2007. Petitioner refused to participate in family reunification services but agreed to drug test as long as it was not by hair follicle. She also asked that her mother and sister be evaluated for placement.

In late January 2007, the juvenile court conducted a contested jurisdictional hearing and adjudged C. a dependent child as alleged in the amended petition. The court also set the matter for disposition and ordered petitioner to submit a hair follicle for drug testing. Just several days prior to the jurisdictional hearing, petitioner filed a form (JV-140) notifying the court of a change of address from Armona (Kings County) to Riverdale (Fresno County).

In its dispositional report, the department reported that petitioner had not participated in any of the services ordered at the detention hearing in September 2006. Further, she was not regularly visiting C. The department recommended the court offer petitioner the services ordered at the detention hearing as a reunification plan but deny services to Alex because he was merely C.s alleged father.

In February 2007, the court conducted the dispositional hearing and adopted the departments recommendations. The court also ordered the department to assess transferring the case to Kings County and ordered petitioners attorney to have her file an updated JV-140. In March, petitioner filed another JV-140 changing her address from Lemoore (Kings County) to the same Riverdale address.

By March, petitioner still had not participated in any of her services but her attitude toward reunification had changed. She began regularly visiting C. in Fresno and she expressed her willingness to participate in reunification services with the exception of drug testing. In addition, although not clear from the record, it appears petitioner relocated to Lemoore in March because she asked to have her case transferred to Kings County. She claimed lack of transportation prevented her from participating in services in Fresno.

In order to accommodate petitioner, the caseworker scheduled her drug abuse and domestic violence assessments in Fresno in conjunction with scheduled visits with C. in April and May. The caseworker also arranged for petitioner to take a parenting class and drug test in Kings County.

By the six-month review of services in June, the department had confirmed that petitioner was living in Lemoore and was receiving in-home parenting classes. She had also completed an addiction severity index (ASI) and was not referred for drug treatment because she denied using drugs. Information derived from her ASI was also used to determine that she did not need domestic violence counseling.

In its six-month status review, the department reported that C.s foster parents wanted to adopt him. Meanwhile, the department was in the process of assessing petitioners mother for placement. The department recommended the court terminate petitioners reunification services based on her failure to comply or, in the alternative, transfer her case to Kings County.

In June 2007, the juvenile court conducted a contested six-month review hearing on the departments recommendation. Petitioner argued it was unreasonable for the department to expect her to participate in services in Fresno County when she lived in Kings County.

The caseworker testified that the department did not initially pursue transferring the case to Kings County because the department hoped to dismiss the case. However, by the time the case reached the jurisdictional phase, petitioner had changed her address to Riverdale in Fresno County, making an intra-county transfer improper.

Petitioner testified that she owned a car but claimed the distance from Lemoore to Fresno (approximately a 90-minute drive round trip), the four to five required trips a week and the difficulty arranging childcare for M. and time off of work interfered with her ability to participate in services. However, when asked by the court why she did not submit to a hair follicle drug test as ordered, petitioner stated she believed her case was about child abandonment not about drugs and that she chose not to drug test. She further stated she would provide a urine sample for drug testing but was not sure she would provide a hair sample for drug testing.

The juvenile court concluded the department reasonably accommodated petitioners service plan by providing her in-home parenting instruction and arranging drug testing in Kings County. As to petitioner, the court found her excuses for not participating hollow and her refusal to drug test indicative of her continuing noncompliance. Consequently, the court terminated petitioners reunification services and set a permanency planning hearing. This petition ensued.

DISCUSSION

Petitioner argues she resided in Kings County when C. was detained and therefore the juvenile court erred in not transferring C.s case there. Further, she claims, it was unreasonable to expect her to participate in services in Fresno County when she lived in Kings County. Finally, she claims she would have successfully reunified with C. had services been offered in Kings County. She asks this court to overturn the juvenile courts order terminating her reunification services and direct the court to transfer her case to Kings County. We decline to do either.

The proper court to commence proceedings under section 300 is the juvenile court in the county where the child resides, where the child is found or where the circumstances giving rise to an allegation under section 300 occurred. ( 327.) Thereafter, the court may transfer the case to the county where the parent resides at any time after the court makes its jurisdictional findings. ( 375.)

In this case, because C. was surrendered to a fire station in Fresno, the Fresno County juvenile court properly commenced dependency proceedings by ordering C. detained in September 2006. Further, when the juvenile court issued its jurisdictional findings in January 2007 and its dispositional orders the following February, petitioners address of record was in the city of Riverdale in Fresno County. Consequently, there was no reason to transfer the case at that time.

Nor was there reason to transfer the case in March when petitioner apparently relocated to Lemoore because her residence of record was in Fresno County and it was her responsibility to change it and request a transfer of the case. Further, petitioner had a history of moving and there was no reason for the department to believe that Lemoore was a permanent residence.

Further, the case worker accommodated petitioners move by arranging in-home parenting instruction and drug testing in Kings County. Consequently, petitioners claim she was denied reasonable services because services were not offered in Kings County is not supported by the facts. Rather, the appellate record is replete with references to petitioners refusal to participate in services despite the accommodation. In the end, it was petitioners refusal to cooperate that was unreasonable not the departments efforts to assist with reunification.

Finally, having concluded the Fresno County juvenile court properly exercised dependency jurisdiction, we find no error in the courts order terminating petitioners reunification services. Petitioner received six months of services, the maximum intended for a child such as C. who was under the age of three years when removed from parental custody. ( 361.5, subd. (a)(2).) In addition, petitioner was provided reasonable services with which she failed to comply. Consequently, the juvenile court had no choice but to terminate services and set a section 366.26 hearing unless it could find a substantial probability C. could be returned to petitioners custody by the 12-month review hearing. ( 366.21, subd. (e).) A substantial probability of return exists when all three of the following circumstances are present: (1) the parent regularly visited the child; (2) the parent made significant progress in resolving the problem prompting removal of the child; and (3) the parent demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection and well-being. ( 366.21, subd. (g)(1).)

In this case, petitioners complete refusal to comply with a reasonable plan of reunification obviated a substantial probability of return finding and warranted the courts decision to terminate services and proceed to permanency planning. We find no error.

DISPOSITION

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

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