Christine W. v. Super. Ct.

Christine W. v. Super. Ct.

Filed 8/20/08 Christine W. v. Super. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHRISTINE W., Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.

A121813 (San Mateo County Super. Ct. No. 78122)

Christine W., the mother of Q. P., petitions this court to set aside the juvenile courts order setting a permanent plan hearing pursuant to Welfare and Institutions Code[1] section 366.26. She contends that the juvenile court erred in denying her reunification services. We deny the petition.

I. FACTUAL BACKGROUND

Mother has seven children including Q. P., now nine months old. Mother has an extensive history with the San Mateo County Human Services Agency (the Agency) dating back to 1988. Four of her children have previously been declared dependent children due either to drug exposure at birth, mothers substance abuse, or neglect.

On March 7, 2008, a section 300 petition was filed alleging that Q. P. was diagnosed with a right parietal skull fracture and subarachnoid hemorrhage that suggested physical abuse while in the care of a nonrelative. The petition further alleged that mother has a lengthy criminal history related to her substance abuse and that she was incarcerated since approximately January 17, 2008, due to a probation violation for being under the influence of a controlled substance and for possession of a controlled substance. The petition also alleged mothers long history with the Agency involving four of her six other children, all of whom have previously been declared dependent children due to mothers drug abuse and chronic neglect. The juvenile court ordered that Q. P. be detained and ordered placement in a shelter care/receiving home pending the next hearing.

On April 8, 2008, the petition was amended to allege that mother was currently incarcerated, that the identity of the father of Q. P. was unknown, and that there were no relatives available to care for the child. On May 29, 2008, following a contested jurisdictional/dispositional hearing, the court sustained the amended petition, declared Q. P. to be a dependent child and set a section 366.26 hearing. The court denied reunification services for mother, finding by clear and convincing evidence that under section 361.5, subdivision (b)(13), services need not be provided because mother failed or refused to comply with a drug treatment program ordered in a case plan on at least two occasions, and that reunification services would be detrimental to Q. P. under section 361.5, subdivision (e)(1) considering the childs age, likelihood that the child will be adopted, . . . [and mothers] longstanding substance abuse problem that cannot be treated within the six-month period allowed for reunification services. The court set the section 366.26 hearing for September 23, 2008.

II. DISCUSSION

Mother contends that the court erred in denying reunification services under section 361.5, subdivision (b)(13) because the evidence was insufficient to support the courts finding that she had previously failed to comply with two drug treatment programs that were ordered as part of a case plan. We conclude that the record fully supports the courts finding.

 In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged to uphold the verdict, if possible. [Citation.]  If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed . . . .   (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

In order to deny reunification services to a parent under subdivision (b)(13) of section 361.5, the court must find by clear and convincing evidence either that the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment during a three-year period immediately prior to the filing of the petition that brought the child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible. The Agency relied on the latter requirement, providing evidence that mother failed the Hope House Program in 2000, the Womens Enrichment Center Intensive Program in 2006, and the Phoenix Program in 1989. Indeed, mother conceded that she did not complete the Hope House and the Womens Enrichment programs but testified that she completed the Phoenix Program which she testified was connected to the New Day program from which she graduated. Following mothers testimony, the Agency recalled Ernest Bednar, mothers social worker, to testify. Bednar testified that in reviewing the Agencys records, the Phoenix Program was an out-patient substance abuse program, a separate program from New Day, that the court ordered mother to complete on February 15, 1989. Mother failed to complete that program; hence the court ordered her into New Day, a residential drug treatment program, on February 6, 1990.

On this record, given the substantial evidence of mothers failure in three programs, the court did not err in finding that mother failed or refused to comply with a drug treatment program as described in the case plan on at least two occasions.

Mother also argues that the court erred in denying reunification services under section 361.5, subdivision (e)(1) because there was no evidence that ordering reunification services would be detrimental to Q. P. Subdivision (e)(1) of section 361.5 provides that the court may deny reunification services if the parent is incarcerated and the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered, . . . and any other appropriate factors.

Here, the evidence showed that mother was currently incarcerated, serving a one-year sentence for felony drug possession, that her release date was beyond the six-month period for reunification, and that she had a long, extensive substance abuse problem that would not be ameliorated within the requisite statutory period. (See In re James C. (2002) 104 Cal.App.4th 470, 486 [evidence supported denial of services where fathers prison release date exceeded the maximum period of reunification services that could be provided].) The evidence further revealed that Q. P. was just eight weeks old when mother was arrested in January 2008 and found to be in possession of a pipe with cocaine residue in her pocket. As Bednar, mothers social worker testified, the very same issues exist now 20 years later as they did when she had her first child that was born positive of cocaine. Shes still being arrested for possession of drugs. Shes still using drugs, not right at this moment because she is incarcerated. Shes made statements to me that she . . . doesnt use when she is incarcerated or in treatment programs. She is heavily addicted to drugs and she has been using drugs for most of her life and shes never found a way to stop. He further testified that it would be detrimental to Q. P. to provide reunification services for mother because it is in Q. P.s best interests to move to a permanent plan of adoption rather than languish in foster care while mother attempts to deal with long-standing substance abuse issues that she has had numerous opportunities to address. (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [reunification contrary to childrens best interests where mother failed to maintain any kind of long-term sobriety].) The Agencys report for the hearing also noted that two of mothers children tested positive for cocaine at birth, and that while Q. P. did not test positive, his physician opined that Q. P. presents like a drug exposed child because of his developmental delays, increased tone and hypertonic state. In light of the fact of mothers incarceration and the substantial evidence of detriment to Q. P. if reunification services are provided, the courts order denying services to mother under section 361.5, subdivision (e)(1) was proper.[2]

III. DISPOSITION

The petition for an extraordinary writ is denied on the merits. ( 366.26, subd. (l).) Our decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

RIVERA, J.

We concur:

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RUVOLO, P.J.

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SEPULVEDA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] We note, in passing, the high quality of the briefing prepared by the certified law student on behalf of the Agency.