Ashley P. v. Superior Court
Filed 4/9/12
Ashley P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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opinion has not been certified for publication or ordered published for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
ASHLEY
P.,
Petitioner,
v.
THE SUPERIOR COURT OF
KERN COUNTY,
Respondent;
KERN COUNTY DEPARTMENT
OF HUMAN SERVICES,
Real Party in Interest.
F064095
(Super. Ct. No. JD125710-00)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Ashley P.,
in pro. per., for Petitioner.
No
appearance for Respondent.
Theresa A.
Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Ashley, in propria persona, seeks
an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile
court’s orders issued at a contested six-month review hearing terminating
Welfare and Institutions Code section 366.26
finding she did not regularly participate and make progress in her
reunification plan. (§ 366.21,
subd. (e).) We will deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In January
2011, the juvenile court ordered then two-year-old T. detained from her
parents, Ashley and Dwight, after sustaining allegations that their domestic
violence and Ashley’s substance abuse placed T. at risk of harm. The petition also alleged that T. was
diagnosed with tuberous sclerosis,
name="_ftnref3" title="">[2] a seizure disorder, and that Ashley and Dwight
were developmentally disabled and unable to medically manage her
condition. The juvenile court ordered the
Kern County Department of Human Services
(department) to provide Ashley and Dwight reunification services as soon as
possible. The department placed T. in
foster care.
In January
2011, following the detention hearing, the department offered Ashley and Dwight
an initial reunification plan consisting of substance
abuse counseling, parenting instruction and random drug testing. A social worker reviewed the case plan with
them and they were provided a copy.
In March
2011, the juvenile court adjudged T. a dependent child following a contested
jurisdictional hearing and ordered Ashley and Dwight to undergo psychological
evaluations to determine if they could participate in and benefit from
reunification services. The juvenile
court set the dispositional hearing, which was conducted in July 2011.
Meanwhile, Dr. Little, a
evaluated Ashley and Dwight and opined that their adaptive skills were
consistent with those of a developmentally delayed person and that they
suffered from mental disorders. Dr.
Little did not, however, preclude the possibility that they could successfully
reunify.
In July
2011, at the dispositional hearing, the juvenile court found that Ashley and
Dwight made no progress in their initial services based on the department’s
report that they had not enrolled in any of the services offered. The juvenile court ordered them to
participate in counseling for anger management, child neglect, domestic
violence, parenting, substance abuse and mental health and to submit to random
drug testing.
Over the
ensuing six months, Ashley and Dwight made what the department characterized as
minimal progress in their court-ordered services. Ashley completed anger management and child
neglect counseling and parenting instruction and was participating in domestic
violence counseling. She was not,
however, participating in substance abuse, mental health or couples
counseling. In addition, she failed to
drug test 11 times, tested positive for marijuana once, and missed four
visits. The department recommended that
the juvenile court terminate Ashley and Dwight’s reunification services at the
six-month review hearing and set a section 366.26 hearing.
In January
2012, the juvenile court conducted the six-month review hearing. Counsel presented argument only. Ashley’s attorney asked the juvenile court to
continue reunification services and to vacate its order for couples counseling
because she and Dwight were no longer a couple.
Following
argument, the juvenile court terminated Ashley and Dwight’s reunification
services and set a section 366.26 hearing.
In issuing its ruling, the juvenile court stated, “Based on the evidence
…, I can’t find that [the parents have] made substantive progress. It would be just ignoring what’s in the
report.” This petition ensued.
DISCUSSION
Ashley
contends that the juvenile court should have given her more time to complete
her reunification plan. She asks this
court to vacate the juvenile court’s order setting the section 366.26 hearing
and order the juvenile court to continue reunification services. We decline to do so.
The juvenile court in this case terminated Ashley’s
reunification services pursuant to section 366.21, subdivision (e) because it
found that she did not make substantive progress in her court-ordered
services. Section 366.21, subdivision
(e) provides in pertinent part: “If the
child was under three years of age on the date of the initial
removal ... and the court finds by clear and convincing evidence that
the parent failed to participate regularly and make substantive progress in a
court-ordered treatment plan, the court may schedule a hearing pursuant to
Section 366.26 .…”
Ashley argues the juvenile court erred because she
regularly participated in and made substantive progress in her reunification
plan. To that end, she points to
evidence that she completed three of the seven classes she was ordered to
complete (parenting, child neglect and anger management) and was actively
participating in two others (domestic violence and mental health
counseling). In addition, she claims she
should not have had to participate in couples counseling since she and Dwight
were no longer a couple. She
acknowledges that she did not participate in substance abuse counseling or
regularly drug test, but claims that she did not have time to participate
because of all the other counseling she was required to complete. She also claims that she was not using drugs
and that she was experiencing difficulty with the call-in system.
In essence, Ashley argues
that the juvenile court should have reached a different conclusion with respect
to her participation and progress based on the evidence to which she
cites. The question on appeal, however,
is not whether the juvenile court should have made a contrary finding, but
whether substantial evidence supports the finding that it made. (In re Dakota H. (2005) 132 Cal.App.4th
212, 228.)
credible, and of solid value’; such that a reasonable trier of fact could make
such findings.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) On review of the evidence, as summarized
above, we conclude substantial evidence supports the juvenile court’s finding.
T. was removed from Ashley’s custody
for a variety of reasons, chief among which was Ashley’s inability to properly
monitor T.’s seizure disorder. Of
particular concern was Ashley’s failure to take T. to her medical appointments
and properly administer her medication.
Consequently, Ashley’s willingness to cooperate and comply with a
services plan was critical to her ability to progress toward
reunification. Yet, between January and
July of 2011, she made no effort to participate in services offered her by the
department. By January 2012, a full year
after T. was initially detained, Ashley had still not progressed to the point
where T. could be safely returned to her custody or where reunification was
even a foreseeable option.
Given Ashley’s substantial delay in
actively engaging in her reunification services, we concur that she failed to
regularly participate in them. We also
concur that her progress was not substantive, undoubtedly the more important
consideration in this case.
implies progress that can be sustained.
If the purpose of the reunification plan is family preservation, then
the juvenile court must be able to find that the parent attempting
reunification resolved the problem necessitating the child’s removal and that
the parent can provide for the child’s safety and well-being. (Jennifer
A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343-1345.) The juvenile court stated it could not find
such evidence and we concur.
We find no error in the juvenile
court’s finding that Ashley failed to regularly participate and make
substantive progress in her court-ordered services and in its orders
terminating her reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
Levy, Acting P.J., Gomes, J., and Kane, J.
and Institutions Code unless otherwise indicated.
