Amy B. v. Superior Court

Filed 5/27/08 Amy B. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge.

Amy B., in pro per., for Petitioner.

No appearance for Respondent.

B. C. Barmann, Sr., Kern County Counsel and Mark L. Nations, Chief Deputy County Counsel, for Real Party in Interest.

-ooOoo-

__________________

*Before Levy, Acting P.J., Gomes, J., and Dawson, J.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her sons D. and H. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

This petition arises from a contested jurisdictional/dispositional hearing on a supplemental petition ( 387) conducted in February 2008 at which the juvenile court terminated petitioners reunification services and set a section 366.26 hearing as to D.

Dependency proceedings were first initiated in October 1999 when then nine-month-old D. was removed from the custody of petitioner and his father because of their drug use and domestic violence. Petitioner and D.s father successfully reunified with D. and, in January 2001, the juvenile court terminated its jurisdiction over the case.

Over the ensuing five to six years, petitioner struggled with drug use. She divorced D.s father and married B.B. who also has a history of drug use. She also completed two inpatient drug treatment programs in 2005 and 2006.

In November 2006, petitioner gave birth to H. who was born positive for methamphetamine. The social services department (department) took D. and H. into protective custody. The juvenile court exercised dependency jurisdiction and ordered family reunification services. D. and H. were placed with separate relative caregivers.

At the six-month review hearing in June 2007, the juvenile court terminated reunification services for D.s father. At the 12-month review hearing in December 2007, the court ordered D. and H. placed with petitioner and B.B. under a plan of family maintenance and set a family maintenance review hearing for May 2008. The family maintenance plan required petitioner to complete substance abuse counseling and submit to random drug testing.

In January 2008, the department removed the children from petitioner and B.B.s custody and filed a supplemental petition after petitioner tested positive for methamphetamine in December 2007 and January 2008. D. was placed with relatives and H. was placed with B.B.

In February 2008, the juvenile court conducted a combined and contested jurisdictional/dispositional hearing on the supplemental petition. Petitioner appeared at the hearing represented by counsel. Prior to the hearing, petitioner executed a waiver of her trial rights and submitted on the departments report. Consequently, the court found the allegation in the supplemental petition true. During the dispositional phase of the hearing, petitioners attorney advised the court petitioner did not object to setting a section 366.26 hearing as to D. Rather, she believed it would be in D.s best interest to be placed with his maternal grandmother under legal guardianship. However, she wanted the court to continue services so that she could reunify with H. Her attorney told the court she had re-enrolled in substance abuse counseling and believed she could complete it by May 2008.

At the conclusion of the hearing, the court terminated petitioners reunification services as to D. and H. and set a section 366.26 hearing as to D. The court continued H. in family maintenance with B.B., which was still set for review in May 2008. This petition ensued.

DISCUSSION

Petitioner argues she was entitled to 18 months of reunification services. Consequently, she claims, the court erred in terminating them. She also denies entering into a mediated agreement to establish a permanent placement for the children. Finally, she claims there was testimony not included in the appellate record which places the positive results of her drug tests in doubt.

As a general principle, all juvenile dependency findings and orders beginning with disposition are reviewable by direct appeal with the exception of findings and orders issued at the hearing setting the section 366.26 hearing (setting hearing). ( 395; Cal. Rules of Court, rule 8.400(a)(1)(A); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Findings and orders issued at the setting hearing are reviewable by extraordinary writ petition. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.450.)

In this case, the juvenile court scheduled a setting hearing as to D. only. Consequently, only the orders issued as to him are the proper subject matter for a writ proceeding. However, when petitioner agreed the court should implement a permanent plan of legal guardianship for D., she in essence submitted on the departments recommendations. As a result, she waived any right to challenge the courts orders with respect to D. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)

Further, since the juvenile court did not schedule a setting hearing as to H., the order terminating reunification services in his case is directly appealable. Not having filed a notice of appeal, petitioner foreclosed our review.

That said, however, even if we were to review the juvenile courts order terminating petitioners reunification services as to H., we would find no error. We first dispel petitioners assertion that she has a right to 18 months of reunification services. The juvenile court may extend reunification services to a maximum of 18 months, but there is no statutory right to a full 18 months. ( 361.5, subd. (a)(3), 366.22, subd. (a).)

Further, because H. was under the age of three years when detained, and because the services provided were reasonable,^[2]the juvenile court could have limited services to six months. ( 361.5, subd. (a)(2).) Instead, petitioner received approximately 15 months of services and she was still testing positive for drugs. She claims in her petition that her probation officer testified at a review hearing in September that there may have been a mix up with her drug test results. She does not, however, specify which year the review hearing supposedly occurred, and the appellate record contains no record of a review hearing conducted in September during these proceedings. Further, she admitted at the hearing in February 2008 that she fell off the wagon and the court found sufficient evidence that she tested positive on other occasions. Because petitioner had not resolved her drug problem, the court could not safely return H. to her custody.

Unable to return H. to petitioners custody and with only three months before the 18-month review hearing, the juvenile court had little choice but to terminate petitioners services unless it could find she made significant progress in resolving her drug problem and demonstrated the capacity and ability to provide for H.s safety. ( 366.21, subd. (g)(1).) Petitioners continued drug use militates against such a finding.

Finally, though the court may extend services even beyond 18 months if it would serve the childs best interest, petitioner did not make that argument nor is there evidence on the record that H.s best interest would be so served. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) We would find no error on this record.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Petitioner does not challenge the reasonableness of services.