Camille D. v. Superior Court

Filed 3/6/07 Camille D. v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS in mandate. D. Zeke Zeidler, Judge. Petition denied.

Elizabeth Hong for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. De Vanzo, Principal Deputy County Counsel, for Real Party in Interest.

____________________________

Camille D. seeks review of the dependency courts order terminating reunification services in this case involving seven of her eight children.[1] She contends that extraordinary relief is warranted because services were terminated before the dependency court received the report of an evaluation conducted to determine whether her inability to comply with the case program was the result of developmental or other problems. We deny the requested relief on the ground that the order is supported by substantial evidence.

FACTUAL AND PROCEDURAL SUMMARY

In September 2004, while living in a shelter, mother signed a voluntary contract with the Department of Children and Family Services (DCFS) to receive services for herself and her eight children. She was to receive drug treatment, testing and counseling, parenting education, and family preservation services to find adequate housing. She was to ensure the children attended school. Mother and the children had been homeless for two years, and mother admitted to daily marijuana and alcohol use. By January 2005, mother had not followed through with referrals and was not in compliance with her voluntary contract. Two hotline calls reported that mother was leaving the children unsupervised for long periods and that the child J.T. had been sexually abused and was pregnant. Mother had not secured adequate housing, although she was working on it, and the children were not attending school regularly. Two of the children had been sent to live with the maternal grandmother.

DCFS filed a petition in January 2005 pursuant to Welfare and Institutions Code section 300[2]alleging that mother failed to protect the children and failed to provide adequate supervision. The children were detained. I.D., D.D., M.D. and L.C. were placed with their father/stepfather. U.J., P.W., and J.T. were placed with the maternal grandmother. Mother was to have monitored visitation.

Following mediation, mother waived her trial rights, and pled no contest to an amended petition pursuant to section 300, subdivision (b). It was agreed that mother would have individual counseling, parenting, drug treatment and random drug testing. Minors C.M., J.T., P.W, and U.J. were ordered to have individual counseling. Mother was to have monitored visitation with the children. The dependency court sustained the petition in accord with the mediation agreement and continued the matter for disposition.

Three of the children were placed with their father. In September 2005, DCFS filed a petition under section 342 alleging that father was using cocaine and alcohol, had physically abused I.D., possessed drug paraphernalia within the reach of the children, and allowed them to play in the streets. Two of these children were placed in foster care and I.D. was placed with her other siblings at maternal grandmothers home. The section 342 petition was later sustained.

The social workers report for the 12-month review in March 2006 stated that mother was in partial compliance with her program. She had started individual counseling and parent education in the spring of 2005 but had not completed either program. Mother reenrolled in parent education in February 2006 but never attended a session. Similarly, mother began drug counseling sessions in spring 2005, but dropped out before she was discharged. She reenrolled in February 2006 but only attended one session. Apparently her first drug tests were in October 2005 and were negative, but mother was not in compliance with weekly random tests. Mother had been given the information for the Parents Beyond Conflict program but had not yet enrolled. Records showing that mother failed to appear for testing on nine occasions between November 2005 and March 2006 were attached to the 12-month review report.

Although mothers visitation with the minors was sporadic from February through April 2005, visitation since then had been consistent and had gone well. The minors were very attached to mother. The social worker recommended termination of reunification services because mother was not capable of completing any program without constant support from someone.

A section 366.22 review report prepared in July 2006 reflected that mother had begun individual counseling and was enrolled in several programs including parenting classes. She completed a parenting program with FAME Assistance Corporation in May 2006. Mother had drug tested four times in May and June 2006, but each was positive for marijuana. Two no show reports from May through June 2006 were attached showing that mother had failed to comply with random drug testing. She had one more session of Parents Beyond Conflict to complete. Visitation with the children had been changed to unmonitored visits and mother was in full compliance. DCFS recommended that reunification services for mother be terminated.

In July 2006 mother moved into a sober living facility. She had been evaluated at the regional center because of the social workers concern that mother has a disability, but no report had been received. An interim review report for September 2006 reported that mothers residence was not appropriate for the children. The social workers main concern was that mother would not ensure the children attended school because she had failed to do so in the past. DCFS was attempting to locate adoptive homes for six of the children, including four who strongly wanted to remain together. The seventh child, J.T., was in a maternity home expecting her second child. DCFS recommended termination of services to mother because of her failure to comply with the program, and in particular her failure to complete a drug counseling and testing program. Mother dropped out of the New Beginnings drug program sometime in August 2006. She tested at that agency three times; the first test was positive, the next two were clean.

The social worker testified at the contested section 366.22 hearing that she had referred mother for evaluation at the regional center as early as February 2006 in order to find out why mother needed so much help with her program. But the report from the evaluation had not been received at the time of the hearing in September 2006. Mother argued for an extension of services until the evaluation was received, but did not ask for return of the children to her. Counsel for the minors joined in mothers request. The dependency court found by clear and convincing evidence that DCFS had provided reasonable services, terminated family reunification services, and set a permanency planning hearing. This writ petition followed.

DISCUSSION

Mother argues the trial court erred in finding reasonable efforts had been made in providing services to her because her special needs had not been addressed. In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment. [Citation.] If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings. (In re Carrie W. (1978) 78 Cal.App.3d 866, 872 [144 Cal.Rptr. 427].) (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361 -1362.)

The argument made by mother presupposes that reunification services were inadequate because she is disabled and requires special assistance. She cites California cases establishing the right of disabled parents to special accommodations in the dependency system. This argument is based on the social workers recognition that mother needed more support than other people and the DCFS referral to the regional center for evaluation.

Mother relies on evidence that despite the social workers concerns about her possible disability, she failed to refer mother to programs appropriate to her needs. According to mother, the social worker did not refer mother to counseling to address those needs, and did not provide referrals to housing or programs that would have provided additional structure because mother did not have any of her children with her. She claims the housing referrals given were unsuitable because they were either for mothers with children, or were for shelters which did not take children and were unsafe for them. She also complains that the court terminated reunification services before the result of mothers long delayed evaluation at the regional center was obtained, despite a request from mother and counsel for the minors to extend services until those results could be reviewed.

Real party in interest DCFS argues that mothers argument is too speculative and was not sufficient to warrant an extension of services beyond the 21 months of services already provided, based on a hope that mother would qualify for regional center services. DCFS argues that mother demonstrated minimal interest in obtaining or completing services. It points to the evidence that mother waited nine months after being ordered to submit to weekly random drug tests to submit to a test, and to her pattern of sporadic and inconsistent testing thereafter. She had three positive tests for marijuana in May and June 2006. At the time of the contested hearing, mother had again dropped out of her drug treatment program. There was evidence that the social worker contacted the regional center repeatedly to obtain the results of mothers evaluation, all without success.

The cases on which mother relies are distinguishable because in those cases, a developmental or other special need had been identified by qualified professionals. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [mother with history of repeated hospitalizations for psychotic episodes]; In re Monica C. (1995) 31 Cal.App.4th 296 [incarcerated mother]; In re Daniel G. (1994) 25 Cal.App.4th 1205 [mildly retarded mother diagnosed as schizophrenic]; In re Misako R. (1991) 2 Cal.App.4th 538 [Korean-speaking mother illiterate in both Korean and English, found mildly retarded by psychologist]; In re Victoria M. (1989) 207 Cal.App.3d 1317 [mother had received special education in school after testing, received regional center services, and was diagnosed as having a low level of functioning by psychologist].) In re Dino E. (1992) 6 Cal.App.4th 1768, cited by mother, is distinguishable because in that case no reunification plan was given father.

We conclude that substantial evidence supports the dependency courts ruling terminating reunification services. Mother repeatedly failed to complete a drug treatment program and to submit clean weekly drug tests. The question of any possible developmental cause for her failure to comply with the program is speculative on this record. Counsel for mother did not seek an evaluation under Evidence Code section 730 and did not initiate the regional center referral. In the event that the regional center evaluation or an Evidence Code section 730 evaluation establishes that mother has special needs, she may file a section 388 petition to bring that evidence to the attention of the dependency court.

For the same reasons, we conclude that the dependency court did not abuse its discretion by deciding not to continue the section 366.22 hearing pursuant to section 352 as mother argues.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] Chester M. was named in the original petition filed by DCFS, but is not a subject of the writ petition because jurisdiction over him was terminated when he reached the age of 18.

[2] All statutory references are to this code unless otherwise indicated.