Cecilia C. v. Superior Court

Filed 10/24/06 Cecilia C. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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. Cynthia Bashant, Judge. Petition denied; request for stay denied.

Cecilia C. seeks review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26.^[1] Cecilia contends there is insufficient evidence to support the court's finding that there was no substantial probability her children would be returned to parental custody by the 18-month review date, and therefore the court erred when it terminated reunification efforts and referred the case for a section 366.26 hearing. The San Diego Health and Human Services Agency (Agency) agrees with Cecilia's position and urges us to reverse. We conclude substantial evidence supports the court's findings and orders, and we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2005, the Agency removed Cecilia's children, Elisa M., then age seven, and A.T., then age two, from parental custody.^[2] The Agency filed a petition alleging Elisa and A.T. (together, children) were at substantial risk of suffering serious physical harm or illness because Cecilia used illegal drugs, the condition of the family's home was filthy and unsanitary, the food supply was inadequate, and Cecilia frequently left the children with relatives when she was using drugs.

On June 23, 2005, Cecilia submitted to jurisdiction. The court removed the children from her custody and placed them in the home of their maternal great-aunt (Aunt), who often cared for them. The court ordered the Agency to provide Cecilia reunification services, including a psychological evaluation, individual therapy, parenting classes, substance abuse treatment, a 12-step program and supervised visitation. The court ordered Cecilia to participate in the Substance Abuse Recovery Management Systems program (SARMS).

In July 2005 Cecilia tested positive for methamphetamine. In September the Agency received an emergency referral alleging Cecilia was three or four months pregnant and using methamphetamine, and she had assaulted and injured her mother. The social worker was not able to locate and meet with Cecilia until November 3, 2005. On October 28, Cecilia had checked into a residential drug treatment program because she was pregnant, homeless, and "doing a lot of drugs." She had not recently visited Elisa and A.T., and she had not been participating in court-ordered reunification services.

In December 2005 the Agency recommended the court terminate Cecilia's reunification services and set a permanency plan hearing under section 366.26. Cecilia continued in residential treatment. In January 2006, shortly before the six-month review hearing, Cecilia gave birth to a healthy son who remained in her custody. The Agency changed its recommendation to continue family reunification efforts.

At the six-month review hearing, the court found Cecilia made some progress toward the goals outlined in her case plan and ordered the Agency to provide family reunification services for an additional six months. Cecilia admitted she was not in compliance with SARMS in July 2005, and the court ordered her to attend dependency drug court on January 26, 2006. After observing drug court proceedings, Cecilia informed the dependency drug court she did not wish to participate, and she was excused.

At the end of January 2006, Cecilia graduated from the residential substance abuse treatment program and transitioned to a sober living facility. She found it difficult to meet expenses for herself and her infant son and, in April, left the facility to stay with her mother. Cecilia found a job, and the Agency helped her apply for housing assistance. Cecilia stopped attending the aftercare substance abuse treatment program. She did not continue individual therapy. Her cooperation with SARMS was poor, and she did not participate in a required 12-step program. On June 1, Cecilia was discharged from SARMS for noncompliance.

In its 12-month review status report, the Agency recommended the court extend family reunification services to the 18-month review date. Minors' counsel opposed the Agency's recommendations. In July 2006, before the 12-month review hearing, Cecilia reenrolled in the aftercare program she had left in April, and in SARMS. On July 14, she gave a drug test sample too diluted to assure valid negative results.

A contested 12-month review hearing was held on July 25, 2006. Cecilia testified she stopped participating in services in April when she began working more than 40 hours each week. Her priority was to save money to acquire suitable housing for her family. Cecilia did not visit Elisa and A.T. every week because she was working such long hours.

The social worker opined Cecilia had the ability to complete her case plan and safely provide for her children. He observed that Cecilia's overall progress in meeting the goals outlined in the case plan was only fair; however, for several months after the six-month review hearing, her progress in treatment had been very good. The social worker testified the only current detriment to the children's return to parental custody was Cecilia's lack of suitable housing.

Aunt testified that A.T. and Elisa missed their mother. She believed Cecilia had changed but not to the extent she could safely care for the children. Aunt estimated Cecilia cancelled more than half of the visits she scheduled with the children. A.T. and Elisa were often disappointed when Cecilia made arrangements to visit and then did not follow through on her promises.

The court found that Cecilia did not make substantial progress to overcome her 10-year history of drug use, the primary cause of the children's dependency. Cecilia did well in treatment for four months but, after leaving the residential program, she did not participate in substance abuse treatment services, SARMS, drug testing, a 12-step program, or therapy. The court found that Cecilia did not visit the children regularly and consistently, and concluded that Cecilia was not motivated to regain custody of A.T. and Elisa, despite their bond to her. The court determined there was no substantial probability the children would be returned to parental custody by the 18-month review date, terminated reunification services, and set a permanency plan hearing under section 366.26.

DISCUSSION

A

Cecilia contends she made substantive progress in resolving the problems that led to the children's removal from her custody. She asserts that although she did not strictly comply with services, she was in substantial compliance with the case plan and made good progress in resolving her substance abuse problem. Citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343, Cecilia argues she was not required to demonstrate "perfect compliance" with the case plan.

The Agency, consistent with its position at the 12-month review hearing, argues the evidence shows that family reunification could be achieved with the provision of additional services. It asserts the juvenile court can terminate reunification services only when a parent has not made substantial progress with the provisions of the case plan and there is no likelihood of family reunification by the 18-month review date. The Agency contends the only detriment to the children's return to parental custody at the time of the 12-month review hearing was Cecilia's lack of appropriate housing, and that her housing problem could be remedied within a short time.

B

Cecilia, the petitioner in this writ, and the Agency, the real party in interest, agree that substantial evidence does not support the trial court's findings and orders, and urge us to issue a writ directing the juvenile court to vacate its orders terminating family reunification services and setting a hearing under section 366.26. However, their concurrence in this matter does not alter our obligation to review the record to determine whether the party or parties challenging the findings and orders of the trial court are able to show there is no evidence of a substantial nature to support the finding or order. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

When the findings and orders of a trial court are challenged on the grounds of insufficient evidence, we review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) On review, we do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

C

Under section 366.21, subdivision (g)(1), the court may at the 12-month review hearing:

"Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only 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 legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:

"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.

"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.

"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."

We conclude that ample evidence supports the juvenile court's finding there was no substantial probability A.T. and Elisa would be returned to their mother's custody within 18 months of the date the children were removed from parental custody.^[3] The record shows that Cecilia did not consistently and regularly contact and visit the children. (See § 366.21, subd. (g)(1)(A).) At the 12-month review hearing, Cecilia admitted, "There is really no excuse for me not visiting my kids." During the initial six-month reunification period, she visited with the children twice. While Cecilia was staying at the sober living facility, Aunt brought the children to visit her. In April and May 2006, Cecilia did not visit the children regularly, or as frequently as she might have. With the exception of a one-hour visit in June and an overnight outing arranged by Aunt in July, Cecilia's other visits with the children, three in June and two in July, were fairly short. One visit lasted no more than five minutes.

The record also supports the juvenile court's finding under section 366.21, subdivision (g)(1)(B) that Cecilia had not made significant progress in resolving the problems that led to the children's removal from the home. The court identified Cecilia's substance abuse problem as the primary problem underlying the need for dependency proceedings. Cecilia had a 10-year history of substance abuse without intervention or treatment. The record supports the inference Cecilia was aware of and utilized methods to avoid detection of her drug use, and involved her daughter in the deception. Elisa reported her mother asked her to urinate in a cup, and then would put Elisa's urine in a condom to take to drug testing at her place of employment.

After the children were removed from her care, Cecilia continued to use methamphetamine and did not participate in a drug treatment program or other offered services. She sought treatment only when she was more than six months pregnant and homeless. To her credit, Cecilia generally complied with program requirements from the end of October 2005 until April 15, 2006. However, after Cecilia left her aftercare program in April 2006, her participation in SARMS became sporadic, and was characterized by the SARMS counselor as "poor." Cecilia did not consistently attend 12-step meetings, and did not appear for drug testing from May 1 to May 15. After May 15, Cecilia submitted to one drug test, which was negative. Her last contact with SARMS was on May 18, and she was discharged from the program on June 1. Six weeks later, Cecilia appeared for a new intake at SARMS and submitted a diluted specimen, which resulted in an invalid negative result. The SARMS counselor had concerns about Cecilia's sobriety.

Cecilia disregarded treatment services for seven of the 14 months the children were removed from her custody. Her performance is not comparable to the parent in Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pages 1341-1344, who participated in services throughout the entire reunification period and made substantive progress. Here, the juvenile court did not err when it concluded that Cecilia did not substantially comply with services. Further, the court acted within its discretion when it determined Cecilia's testimony concerning her sobriety was not credible in view of her 10-year history of substance abuse, ability to manipulate drug testing, continued use of methamphetamine while pregnant, unwillingness to participate in drug court and out-patient treatment services, recent diluted drug test and the SARMS counselor's concerns about her sobriety. The trial court evaluates the credibility of witnesses, and we accept the court's determination. (In re S.C., supra, 138 Cal.App.4th at p. 415.) Substantial evidence supports the court's finding that Cecilia did not make significant progress in resolving her substance abuse problems.

Despite the social worker's opinion that Cecilia had the capacity and ability to complete the objectives of her treatment plan and to provide for the children's safety and emotional well-being, substantial evidence supports the court's finding that she did not. The Agency provided Cecilia with extensive treatment services, including residential treatment, an aftercare program, and SARMS. The court offered her additional support services from dependency drug court, which she rejected. Although Cecilia made efforts to regain her sobriety when she was more than six months pregnant, her lack of consistent participation in treatment services supports the court's conclusion that Cecilia was not motivated to regain custody of A.T. and Elisa.

Further, Cecilia did not demonstrate an ability to provide for A.T.'s and Elisa's safety and well-being. The children had a bond with their mother and they missed her. Yet Cecilia cancelled more than half of the visits she scheduled with the children, who were beginning to conclude she did not care about them. Cecilia's insensitivity to her children's well-being is illustrated by Aunt's description of the two little girls waiting for their mother to visit, refusing to go outside for fear they would miss her, and seeking comfort from Aunt when their mother did not call or show up as promised. In addition, Cecilia's history of methamphetamine use and lack of compliance with substance abuse treatment supports the reasonable inference the children would not be safe in her care. (See § 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child"].) The Aunt, who knew Cecilia well, opined that although Cecilia had changed, she doubted Cecilia's ability to safely care for the children.

In order to grant an extension of reunification services to the 18-month review date, the juvenile court is required to find the parent has met all the requirements imposed by section 366.21, subdivision (g)(1). Here, Cecilia met none of these requirements. Substantial evidence supports the court's conclusions Cecilia did not consistently visit her children, make significant progress in resolving her substance abuse problems, or demonstrate her ability to complete the case plan and provide for the children's safety and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) The court did not err when it terminated reunification services and set the matter for a permanency plan hearing under section 366.26.

DISPOSITION

The petition is denied; the request for stay denied.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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

^[2] The Agency was unable to locate the children's fathers.

^[3] Here, the 18-month review date was November 17, 2006, less than three months from the date of the 12-month review hearing.