Angela L. v. Superior Court

Filed 2/14/08 Angela L. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Angela L. (Mother) seeks an extraordinary writ to set aside an order of the Superior Court of Alameda County, Juvenile Division, which denied further reunification services and set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for her daughter S.L. (born November 2000). As discussed below, we find no merit in Mothers claim of error and deny her petition on the merits.[2]

Background

The Alameda County Social Services Agency (Agency) filed a petition under section 300 on August 15, 2006, one day after placing S.L. in the emergency protective care of her maternal grandmother, Marianne S. The petition alleged that Mother had been abusive to S.L., hitting her on the head with objects, threatening to kill and beat her, yelling at her, and calling her abusive names, causing S.L. to withdraw and cry, to be fearful of Mother, and to prefer staying in Mariannes care. The petition alleged further that Mother was neglectful of S.L. in certain respects because she smoked marijuana on a consistent basis and tended to sleep a lot while . . . high. ( 300, subd. (b).) The petition alleged, finally, that the fathers whereabouts were unknown and that he had failed to provide for the minors care. ( 300, subd. (g).)

The juvenile court ordered S.L.s detention the same day the petition was filed. At the jurisdictional/dispositional hearing, held October 3, 2006, it sustained the foregoing allegations, approved S.L.s placement with Marianne in relative foster care, and ordered reunification services for Mother. The court further adopted a case plan that called for Mother to obtain a psychological evaluation and engage in general counseling, parenting education, inpatient substance abuse treatment, and drug testing.

In the Agencys report prepared for the six-month status review hearing, the assigned case worker recommended that the juvenile court terminate Mothers reunification services and set the matter for a hearing under section 366.26. She reported that Mother had failed to maintain contact and had made no progress with her case plan. At the hearing, however, the Agency notified the court that it had changed its recommendation to one requesting a continuance of reunification services. The reason for the change, as noted by Mothers counsel, was the fact that Mother had begun a residential treatment program approximately 10 days earlierone which provided general counseling and parenting education, as well as substance abuse treatment. On March 26, 2007, the court accordingly directed that reunification services continue. At that time, it scheduled the next review hearing with an initial date of September 6, 2007.

On August 24, 2007, the assigned case worker completed her initial status report for the 12-month permanency hearing. In her estimation, Mother had made minimal progress since the six-month hearing. She accordingly recommended that the juvenile court terminate Mothers services and set a hearing under section 366.26. The 12-month hearing, initially set for early September, was held on November 13. The Agency rested its case-in-chief after submitting into evidence the status report and two subsequently completed addendum reports, together with attached documents such as Mothers psychological evaluation. After Mothers counsel called her to testify regarding her progress, the Agency additionally called the case worker for rebuttal testimony. At the conclusion of the hearing, the Agency argued that evidence compelled a finding that returning S.L. to the care of her Mother would create a risk of detriment to her safety, protection, and well being. (See  366.21, subd. (f).) Further, the evidence did not support those findings necessary to continue Mothers services beyond the 12-month hearing. (See  366.21, subd. (g)(1).) The juvenile court, in effect, agreed with this argument and entered an order that terminated Mothers reunification services and set a hearing under section 366.26. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

The juvenile court found, among other things, that returning S.L. to Mothers custody would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (See  366.21, subd. (f).) Mothers sole objection is that the court erred in making this finding, and accordingly erred in failing to direct the Agency to return S.L. to her custody at the conclusion of the 12-month hearing.

It was the Agencys burden at the 12-month hearing to prove, by a preponderance of evidence, that returning S.L. to Mothers custody would create a substantial risk of detriment. (See  366.21, subd. (f).) In addressing the merit of Mothers contention, we initially reject her claim that the juvenile court improperly shifted upon her the burden to prove a lack of substantial risk of detriment. The court expressly based its finding on the facts submitted by the Agency in its status and addendum reports. The record includes no indication whatever that the court improperly shifted the Agencys burden of proof.

Mother essentially challenges the finding of substantial risk of detriment by reciting evidence favorable to her. Our task is rather to determine whether there is substantial evidence to support the finding after viewing the evidence in the light most favorable to the ruling. We resolve all evidentiary conflicts and indulge all reasonable inferences in favor of the ruling. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 251.)

As we have noted above, the juvenile court continued Mothers services at the six-month hearing after learning that she had entered a residential treatment program approximately 10 days prior to that hearing in late March 2007. In the status report prepared for the 12-month hearing, completed in late August, the assigned case worker reported that Mother left the residential treatment program approximately one week after the six-month hearing. The case worker elaborated at the hearing that Mother left the program after three weeks due to a fight with another woman. During cross-examination, the Agencys counsel elicited from Mother the fact that she had last used illegal drugs in early May, about one month after she left the residential treatment program.

The status report further stated that the case worker had given Mother referrals to a second residential program, but that Mother failed to followup on the referrals. During cross-examination, Mother testified that she did enter the program, but left after one day. According to the report, Mother informed the case worker, in late July 2007 and again in late August, that she was on a waiting list to enter a third residential program, Cronin House. Mother testified that she finally entered Cronin House on September 17a date falling after the date initially set for the 12-month hearingand graduated from its program approximately two weeks before the continued hearing date on November 13. The case worker testified that Agency approved programs typically require at least six months of residential treatment, whereas Cronin House graduated its residents after 45 days and was more in the nature of a detoxification facility. She accordingly advised Mother that Cronin House was not approved and gave her referrals to two additional residential treatment programs that were approved. An addendum report, completed five days before the 12-month hearing, reported that Mother entered a nonapproved program, a sober living facility, after leaving Cronin House. Mother claimed that neither of the additionally referred programs had an opening for her at that time. The case worker checked, however, and learned that either program would have accepted Mother.

The status report also detailed Mothers noncompliance in other aspects of her case plan. Specifically, by the time the report was completed in late August 2007, Mother had still not shown she was engaged in weekly general counseling. She had also delayed the completion of her psychological evaluation due to numerous missed appointments with the evaluator,[3] and had not provided a certificate showing successful completion of an approved parenting education program. Finally, Mother failed to submit to a hair follicle drug test on July 10 after being requested to do so. At the hearing, Mother submitted certificates showing that she had completed a 10-session program of parenting education on September 26again, a date falling after the initial 12-month hearing dateand showing she had attended a relapse prevention program. The case worker, however, testified that neither program was approved by the Agency, and she had not verified Mothers participation in the programs because Mother had not provided her with the certificates before November 13. The case worker also testified that, aside from the missed hair follicle test, Mother had never provided confirmation of any drug testing during the period under review.

It is unnecessary to discuss the decisions cited by Mother, as they are all factually distinguishable. We need only point out that the juvenile court, at the 12-month hearing, was authorized to find that there would be a substantial risk of detriment to S.L. if she were returned to Mothers custody once the Agency made a prima facie showing that Mother had failed to participate regularly and make substantial progress in her court-ordered treatment plan. (See  366.21, subd. (f).) We conclude the foregoing evidence, submitted or elicited by the Agency, provides substantial support for the challenged finding on that basis.

Disposition

The request for stay is denied, and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.)

The section 366.26 hearing is set for March 6, 2008. The decision is final in this court immediately. (Rule 8.264(b)(3).)

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] The psychological report was completed on August 10, 2007. Mother completed her testing and interviews four days earlier, after missing three appointments in June and July.