Vicky B. v. Sup. Ct.
Filed 5/15/06 Vicky B. v. Sup. Ct. CA4/1
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VICKY B., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D048010 (Super. Ct. No. SJ011210) |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition denied.
Vicky B. (mother) seeks writ review of orders terminating her reunification services and setting a permanency plan hearing under Welfare and Institutions Code section 366.26.[1] Vicky contends insufficient evidence supports the trial court's findings she did not make substantive progress with her case plan and returning the child to her care would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2003, the San Diego County Health and Human Services Agency (Agency) removed then four-year-old E.W. (Gina) from her mother's custody and filed a petition under section 300, subdivision (b). The petition alleged mother was unable to provide Gina regular care due to her mental health condition. Mother heard voices telling her to harm her daughter. Gina was afraid of mother because of her unpredictable behaviors and inappropriate physical discipline. Police officers were called to mother's home on several occasions for domestic disturbances and substance abuse.
In January 2004 mother was arrested on a drug-related charge. In February 2004 she tested positive for methamphetamine. The court sustained the dependency petition, removed Gina from parental custody and placed her in the care of a paternal cousin (de facto parent).[2] The court ordered mother to participate in the Substance Abuse Recovery Management System program (SARMS) and undergo psychological and psychiatric examinations. In 1997 and 2003 mother's condition was diagnosed as amphetamine-induced psychotic disorder with delusions. She had a history of amphetamine dependency and withdrawal, and opiate abuse. In May 2004 her amphetamine use was determined to be in remission. However, the evaluating psychologist concluded mother tended to " decline into some disorganized and delusional features during episodes of drug abuse." The psychologist determined protective issues included mother's history of substance abuse or dependence, poor anger/impulse control and a history of child abuse or neglect as both a parent and as a child. Gina's young age increased the " risk for severe physical abuse or fatality."
At the six-month review hearing in August 2004, the court found mother made moderate progress with her case plan. After initial problems, her compliance with SARMS was good. Visitation was going well; however, Gina did not want to live with her mother. By the time of the 12-month review hearing in February 2005, mother was compliant with SARMS, tested negative for drugs throughout the reporting period and was participating in an after-care program. She completed a parenting class and was involved in therapy. The court found that mother made substantive progress with the case plan and there was a substantial probability Gina would be returned to her care by the 18-month review hearing.
The 18-month review hearing was originally scheduled to be heard on June 7, 2005. At that time, the Agency recommended the court terminate reunification services and set a section 366.26 hearing to select a permanent plan for Gina. Mother had made repeated allegations Gina's father was sexually abusing Gina and investigators concluded mother's concerns were a product of delusional thinking. Mother's drug tests were all negative and her therapist reported she made significant progress. Mother and Gina had conjoint therapy. Gina reported she did not want to live with mother because she remembered the " bad things that happened." However, Gina enjoyed visiting her mother and appeared excited about the possibility of overnight visits.
The 18-month hearing was continued eight times and was heard on January 4 and February 3, 2006. Mother tested positive for cocaine in October 2005. In January 2006, despite the positive test, the Agency recommended Gina return to mother's care with support services. The Agency based its changed recommendation on mother's overall progress, good reports from her therapist and Gina's enjoyment of overnight visitation which started in October 2005. On January 10, 2006, mother provided a diluted sample for a drug test and it was deemed positive. Two subsequent drug tests were negative.
Minor's counsel and father contested the Agency's recommendation to return Gina to mother's custody. Gina testified under oath outside the presence of her mother, father
and de facto parent. Gina liked living with the de facto parent. Earlier, she told her therapist she did not want to live with mother. Gina enjoyed spending time with mother and an 18-year-old sister still living at home. When asked whether she would want to live with her mother were she able to " spend lots and lots of time" with the de facto parent, Gina answered, " Yes."
The child's therapist believed were Gina returned to her mother's care, she would be " sad" and " depressed" at first but would adjust with therapeutic intervention. With " a lot more support," mother could safely parent Gina. There would not be a risk to the child's physical safety provided mother remained drug-free. Gina's therapist was very concerned about mother's positive drug test. Mother's therapist opined mother made progress and was not delusional. He did not believe Gina would be in danger were she returned to mother's custody. The social worker did not believe mother's positive drug test in October 2005 and her need for better age-appropriate parenting skills presented a protective risk to Gina.
Mother testified she had been sober for over a year and one-half. She denied any intent to dilute her test sample. She was currently participating in SARMS, substance abuse recovery meetings and individual and conjoint therapy.
The court found by a preponderance of the evidence returning Gina would create a substantial risk of detriment to her safety, protection or well-being. The key issue was mother's continued use of drugs. As long as mother was not completely clean and sober, there was an unacceptable risk she would suffer drug-induced delusions. In light of mother's positive test for cocaine in October 2005 and her diluted sample in January 2006, the court was not satisfied mother was drug-free. The court found mother's progress in alleviating or mitigating risk to Gina was minimal and she did not make substantive progress with the provisions of the case plan. The court terminated reunification services and set the matter for a permanency plan hearing under section 366.26.
DISCUSSION
I
Mother contends the court erred in terminating reunification services and setting a section 366.26 hearing. She maintains insufficient evidence supports the court's findings that she did not make substantive progress with her case plan and there would be a substantial risk of detriment to Gina's safety, protection or physical or emotional well‑ being were she returned to mother's custody.
When the sufficiency of the evidence is challenged on appeal, the reviewing court examines the juvenile court's factual findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Substantial evidence is evidence which is reasonable,credible, and of solid value. In making this determination, the reviewing court resolves all conflicts in the evidence and draws all reasonable inferences in favor of the prevailing party. " In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
II
At an 18-month review hearing, the court shall 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. (§ 366.22.) The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence return would be detrimental to the child. (Ibid.)
III
Substantial evidence supports the court's finding that mother did not make substantive progress in court-ordered drug treatment. Mother participated for 26 months in services specifically designed to help her understand the risks of drug abuse and to remain sober.[3] These services included participation in SARMS, random drug testing, individual therapy and twice-weekly recovery meetings. Mother tested positive for cocaine in October 2005. She denied using drugs and claimed she had been sober for 18 months. We resolve all conflicts in the evidence in favor of the prevailing party. (In re Ricardo L., supra, 109 Cal.App.4th at p. 564.) In January 2006, mother provided a diluted sample for testing. In light of mother's history of substance abuse, the recent positive test for cocaine and the diluted sample (and prior notice the court would consider a diluted sample a sign of drug use), the court reasonably determined mother had not resolved her substance abuse problems. (In re Ricardo L., supra, 109 Cal.App.4th at p. 564.)
Mother argues perfect compliance is not required and the court should look to her overall progress with the case plan. (See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.) The record shows mother worked very hard to repair her relationship with Gina and comply with the court-ordered case plan. She was drug-free for an extended period of time. However, because of her history of drug-induced psychotic delusions, the severely detrimental impact of her behavior on Gina's emotional well-being and the risk it presented to the child's physical safety, the court reasonably concluded that mother's drug use, even if minimal, presented an unacceptable level of risk of detriment to Gina.
The court's conclusion is supported by the opinions of the child's therapist and the clinical psychologist who evaluated mother in 2004. The child's therapist opined protective concerns were eliminated only " as long as [mother] stays away from drugs." He expressed concern about mother's positive drug test because of the likelihood she would become delusional with drug use. In the June 2004 evaluation, the clinical psychologist stated, " should [mother] return to a pattern of drug abuse, then I would recommend against reunification until (or if) she did turn around and recover."
In addition, the record supports the conclusion Gina's return to mother's custody would be detrimental due to mother's level of parenting skills and limited awareness of Gina's emotional needs. The social worker and psychologists agreed mother required continued support services and " a lot of help" to provide Gina adequate care. At trial, the Agency conceded that placement with mother was " very marginal" compared with the stability of the de facto parent.
Gina's emotional well-being was seriously and adversely impacted by mother's past behaviors. She required almost two years of therapeutic intervention before she was able to progress to overnight visits. Although the social worker believed mother's need for better age-appropriate parenting skills did not present a protective risk to Gina, the record shows mother's poor judgment was detrimental to Gina's well-being. Mother's decision in June 2005 to allow Gina to watch a horror movie had unintended but long-term consequences to the child's emotional security. For months after watching the movie, Gina refused to sleep by herself, use the bathroom alone, had nightmares and was afraid of familiar places. Mother was surprised by the therapist's concerns and did not completely understand the protective issues.
As recently as two weeks before the January 2005 hearing, Gina became upset and anxious when asked about returning to mother's care. Gina cried and said she did not want to return home. Her therapist believed Gina would become depressed were she
returned home, perhaps for an extended period of time. However, she was a bright, verbal child and would eventually adjust with continued therapy. The record supports the inference Gina's emotional well-being was improved but not robust. Returning Gina safely to her mother's custody 26 months[4] after she was first detained would require therapeutic intervention and other support services, and was not without risk of detriment to Gina.
The court drew a reasonable inference when it concluded mother's positive test for cocaine in October 2005 and a diluted test sample in January 2006 meant her substance abuse problems were unresolved. In the past, mother's drug use triggered psychotic episodes with adverse consequences to Gina's emotional well-being and substantial risk to her physical safety. It is appropriate for the court to consider a parent's past conduct as well as his or her current circumstances. Past abuse or neglect can be an indicator of future risk of harm. (In re David M. (2005) 134 Cal.App.4th 822, 831.) Gina's return to her mother's care was not viable without therapeutic support and continued in-home services, and would not be safe were mother to use drugs. The court reasonably concluded returning Gina to maternal custody would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. (§ 366.22.)
DISPOSITION
The petition is denied.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] In February 2005 the court granted the paternal cousin's request for de facto parent status.
[3] In addition, mother completed a six-month voluntary services contract in 2002.
[4] We note that Gina was in temporary foster care for a longer period of time than permitted by state or federal law. (See § 366.22, subd. (a) [not to exceed 18 months]; 42 U.S.C. § 675(5)(E) [not to exceed 15 of the most recent 22 months].) Although the presumption at the 18-month review hearing is to return the child to parental custody, when there is a substantial delay in the proceedings, as here, the effect of disrupting a stable, long-term placement may present a substantial risk of detriment to the child's emotional well-being. (See, generally In re Stephanie M. (1994) 7 Cal.4th 295, 317 [" 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. . . .' " ].)
