Gloria R. v. Superior Court
Filed 1/29/07 Gloria
R. v. Superior Court CA4/1
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 977(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
COURT
OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
GLORIA R.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO
Respondent;
| D049639
(Super. Ct. No. EJ2580C-E) |
SAN DIEGO COUNTY HEALTH AND
Real Party in
|
|
PROCEEDINGS for extraordinary relief after reference to a
Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Referee.
Petition denied. Request for stay denied.
Gloria R. seeks
review of juvenile court
orders terminating her reunification
services and setting a Welfare and Institutions Code section 366.26[1] hearing
regarding her children, Felicity D., Lorenzo D., Jr. (Lorenzo, Jr.), and
Michael D. In her petition for extraordinary writ relief (§ 366.26, subd
(l); Cal. Rules of Court, rule 8.452), Gloria contends the court
erred by not extending services for another six months. She argues there was
no showing that returning the children to her posed a substantial risk of
detriment and there was a substantial probability they could be returned by the
18-month date.
We issued an order to show cause, the San Diego County Health and
Human Services Agency (the Agency) responded and both parties waived oral
argument. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 2005, the Agency petitioned on behalf of two-year-old Felicity and one-year-old Lorenzo, Jr., under section 300,
subdivisions (b), (g) and (j), alleging a marijuana pipe and marijuana residue
were found in the family residence within reach of the children; the
whereabouts of the parents were unknown; and the children's father, Lorenzo D.,
Sr., (Lorenzo), taped together the wrists to the ankles of the children's half
sibling, five-year-old Brooklyn R., and left her on a bed. On April 27 police
had gone to the motel room where the family was living and found Lorenzo there
with Felicity, Lorenzo, Jr., and another sibling, four-year-old James R. A
marijuana pipe containing marijuana was in the room. The children were not
taken into protective custody
at that time. On April 28 Brooklyn was detained after Lorenzo taped her wrists
and ankles together and she fell off a bed and hurt her cheek. Police went to
the motel, but the family had left. Brooklyn and James were taken into
protective custody.[2] The
court sustained the petitions and ordered Lorenzo, Jr., and Felicity detained
when they were located.
In July Gloria gave birth at home to Michael.
She and Michael were taken to a hospital, where they both tested positive for methamphetamine. When
authorities learned where Felicity and Lorenzo, Jr., were staying, these
children were taken in protective custody and placed with a relative. Michael was
detained in a licensed foster home.
Gloria reported she began using marijuana at age
14, used the drug until she was 25, stopped for three years and then, resumed
its use when she met Lorenzo.
On September 19, 2005, the court sustained Michael's petition and declared him a dependent in foster care.[3]
Gloria was ordered to comply with her case plan, including counseling, parenting
classes, a psychological evaluation and the Substance Abuse Recovery Management
System (SARMS). She tested positive for methamphetamine on September 23, but
then began participating in her case plan, including therapy, parenting
classes, substance abuse treatment and consistent visits with the children.
Family members reported she supported her family through larceny and identity
theft. On December 2, she was convicted of unauthorized use of personal
information and ordered incarcerated for 180 days. The juvenile court
terminated her from the SARMS program and ordered reasonable visitation during
her incarceration.
The psychologist who conducted a psychological
evaluation of Gloria reported that during the evaluation Gloria attempted to
portray herself in an artificially positive light, and testing suggested she is
impulsive, seeks excitement, sometimes lacks conscience and is a skillful
manipulator, who would lie to stay out of trouble. The psychologist observed
that on the date of the evaluation she had been drug free for only 46 days.
The psychologist recommended reunification proceed slowly.
On February 6, 2006, the Agency filed supplemental petitions on
behalf of the children, alleging the children said their relative caregiver had
hit James in the face and the caregiver accused Felicity of being sexually
inappropriate. The children were detained in foster care. At the six-month
review hearing on March 1, following Gloria's release, the court re-ordered her
to participate in the SARMS program.
In an addendum report dated April 17, 2006, the social worker reported Gloria was participating in SARMS requirements and
therapy, was visiting the children and had completed a 58-hour parenting class
while incarcerated. However, the social worker opined further services would
not be in the children's best interests because 11 months after Brooklyn and
James were detained, the parents were not ready to reunify with the children.
Subsequently, Gloria continued to participate in SARMS and have clean drug
tests and visit with the children. She stopped therapy and then changed to a
new therapist.
The 12-month hearing was held on August 29,
September 29 and October 13, 2006. The social worker testified Felicity,
Lorenzo, Jr., and Michael were doing well in a foster home, where they had
lived for six months. Gloria and Lorenzo had visits with them there. Visits
remained supervised because of Gloria's inconsistency with therapy, her history
and her continued relationship with Lorenzo. The social worker reported Gloria
stopped therapy in March or April and did not start seeing a new therapist
until August. The social worker expressed concern that Gloria continued to
associate with Lorenzo, was very supportive of him and denied he had meant to
hurt Brooklyn. He had tested positive for drugs in May 2006, and, to the
social worker's knowledge, was not drug testing.
Gloria testified she had completed the CRASH
program and was in aftercare. She said she was working with a Narcotics
Anonymous sponsor and a support group and had clean drug tests. She had attended
eight therapy sessions after her release from custody in February 2006, two
with her former therapist and six with a new therapist. She said Lorenzo had
not intentionally hurt Brooklyn and she blamed herself because she had not been
a better mother. She said she loved Lorenzo, but knew that to keep herself and
her children safe she had to stay away from him because he was not in recovery.
The court found returning Felicity, Lorenzo,
Jr., and Michael to the parents would create a substantial risk of detriment
and there was not a substantial probability they could be returned by the
18-month date. It terminated services and set a section 366.26 hearing.
DISCUSSION
Gloria contends the court erred by not extending
services for an additional six months. She argues the Agency did not prove
that returning the children to her care would pose a substantial risk of
detriment and claims there was a substantial probability the children could be
returned by the 18-month date.
A reviewing court must uphold a juvenile court's
findings and orders if they are supported by substantial evidence. (In re
Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in
all reasonable inferences to support the findings of the juvenile court
[citation], and we must also '. . . view the record in the light
most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31
Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337,
340.) The appellant bears the burden to show the evidence is insufficient to
support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d
412, 420.)
Under section 366.21, subdivision (g)(1), a court
may continue a case to the 18‑month date only if there is a substantial
probability that the child will be returned to the parent's physical custody
and safely maintained in the home by that time. In considering whether to
extend the case for 18 months the court must make all of the following three
findings:
"(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." (§ 366.21, subd. (g)(1).)
Substantial evidence supports the court's
findings that returning the children to Gloria's care would pose a substantial
risk of detriment and there was not a substantial probability they could be
returned to her care by the 18-month date.[4]
Although Gloria maintained regular visitation and contact with the children and
participated regularly in services, during the many months of the children's
dependencies, she continued to be in a relationship with Lorenzo. She lived
with him after her release from jail in February 2006 and continued to live
with him for several months after he tested positive for drug use in May. She
supported him, and, at the hearing, said he had made a mistake, but did not
intentionally hurt Brooklyn. The court noted she had not moved to a sober
living apartment without Lorenzo until just a short time before the hearing.
As the court observed, Gloria did not appear to understand codependency and did
not show that she was no longer a codependent with Lorenzo. She thus placed
her own sobriety at risk.
Also, Gloria's counselor at CRASH reported in
September and October 2006 that Gloria had enrolled in a six-month outpatient
treatment program plus three additional months of aftercare. It was unclear
when she would complete the program. Substantial evidence supports the court's
finding Gloria did not show that she had made significant progress in resolving
the problems that led to the children's removal and that there was a
substantial probability the children could be returned safely to her care by
the 18-month date.
DISPOSITION
The petition is denied. The request for stay is
denied.
HUFFMAN, J.
WE CONCUR:
BENKE,
Acting P. J.
IRION,
J.
Publication courtesy of California
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Analysis and review provided by La Mesa Property line attorney.
[3] Michael's
petition under section 300, subdivisions (b) and (j) was based on the parents'
substance abuse and Lorenzo's abuse of Brooklyn.
[4] Although
the court ordered Felicity and Lorenzo, Jr., detained on May 3, 2005, they were not physically removed from the parents' custody until they were located at
the time of Michael's birth in July. The court's decision of October 13, 2006, to terminate services was 15 months since the removal of the
children in July 2005. (§ 366.22, subd. (a).)
