Felicia R. v. Superior Court

Filed 5/2/06 Felicia R. v. Superior Court CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

Petitioner Felicia R., mother of the minors, seeks an extraordinary writ (Cal. Rules of Court, rule 38.1) to vacate the orders of the juvenile court made at the six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further undesignated section references are to this code). Finding merit in one of petitioner's contentions, we grant the petition in part.

FACTS

Children's Services Division (CSD) removed newborn Trenton from parental custody in May 2005. CSD filed a petition alleging petitioner and the minor tested positive for opiates at the minor's birth and the minor showed signs of drug withdrawal. Petitioner admitted a significant history of heroin use. When the minor was born, the father was at home with the minor's sibling, Tyler.

In June 2005, CSD filed a second petition to detain Tyler, age nine, alleging petitioner's history of substance abuse, of which Tyler was aware, and her refusal to submit to drug tests following Trenton's detention. Tyler was placed in protective custody and told the social worker that everyone knew petitioner used lots of drugs and needed help. Petitioner provided a positive test in June 2005. The court ordered Tyler detained and sustained the petitions as to each minor.

The disposition report stated Trenton was in a foster home which could meet his special needs related to drug exposure and Tyler was placed in a separate foster home. The report recommended reunification services. CSD had created a mini case plan after Trenton was detained to identify services and providers for petitioner, but she did not follow through and later explained she did not realize the severity of the matter until Tyler was detained. Petitioner failed to test for several weeks, then provided a positive test subsequent to the jurisdiction hearing. Petitioner told the social worker she had used drugs for about 20 years and her current drug of choice was heroin. Although the social worker recommended a residential treatment program, petitioner did not believe she needed it but was willing to attend 12-step meetings and outpatient services. The service plan required petitioner to attend and make progress in individual counseling through Aegis, her current methadone maintenance provider or through another provider if she chose, and participate in couples counseling when recommended. The plan also required petitioner to participate in a specific parenting program designed to build a bond with Trenton; work with a substance abuse treatment provider to locate a residential treatment facility and, when one was found, to contact CalWORKS for funding; and comply with random testing. Petitioner was to visit each child twice a week. At the dispositional hearing in August 2005, the court ordered petitioner to comply with the plan.

The December 2005 report for the six-month review hearing recommended termination of petitioner's reunification services. The minors remained in separate foster placements. CSD had not been able to find a placement for both primarily due to the high level of care Trenton required, the increasing problems he displayed as a result of drug exposure, and his caretakers' unwillingness to commit to permanency.

The report stated petitioner was hospitalized in Sacramento County in mid-September 2005 for about two weeks. She remained in the area for another two weeks during which time she was out of contact with the minors and the social worker. Petitioner was arrested in October 2005 and released in November 2005. The social worker visited her in jail and reminded her of the case plan requirements.

According to the report, petitioner was referred to therapy in July 2005 but attended only two sessions, was late to both and unwilling to discuss her issues. Petitioner was also referred to the specialized parenting program which rejected the referral since Trenton did not qualify, however, the social worker did provide petitioner two packets about parenting when petitioner was in custody. Petitioner was to read the material and send her written responses to CSD in the envelopes provided, but CSD did not receive any responses. CSD referred petitioner to the Touchstone program in July 2005. The program recommended residential treatment, but petitioner disagreed, stating she was getting methadone treatment and counseling from Aegis and signed a release for CSD. The Aegis program informed CSD that petitioner was inconsistent in attendance and came to the program for methadone but did not participate in the counseling services. The social worker again contacted petitioner about entering a residential treatment program. Petitioner said she lacked the funds to pay for such treatment. CSD worked with a CalWORKS case manager to secure funding and the case manager made several attempts to meet with petitioner. The case manager eventually did contact petitioner and told her she had to demonstrate commitment to recovery by attending ninety 12-step meetings in ninety days and meeting regularly with the case manager. Petitioner failed to comply and did not get the funding. Petitioner generally failed to test when requested from May 2005 to the date of the review report. She provided four negative and three positive tests in that time frame.

Petitioner had regular supervised visits but frequently came late and usually smelled of alcohol. When petitioner was in custody, CSD transported the minors to visit her there. At the first visit after her release, petitioner came smelling of alcohol and said she had been drinking a cold remedy. Petitioner missed the next two visits. The report noted that petitioner had been counseled about participating in services in August 2005 but had not changed her behavior and had not demonstrated any ability to maintain sobriety.

According to a letter from Skyway House filed in January 2006, petitioner entered residential treatment at the end of December 2005, had completed the initial phases and was attending and participating in groups.

At the six-month review hearing in January 2006, petitioner testified about her current program and insisted she previously was denied substance abuse treatment programs because she was in a methadone maintenance program. Petitioner stated that she was placed in her current program under Proposition 36 (Pen. Code, § 1210.1) as a result of her probation.

The court found petitioner's recent substance abuse rehabilitation efforts were a result of her criminal charges and that she had not made prior attempts to participate in the case plan. The court terminated services as to both minors, finding they were a sibling group, and set a section 366.26 hearing.

DISCUSSION

I

Petitioner contends that there was no substantial evidence to support treating the minors as a sibling group for purposes of terminating her reunification efforts as to Tyler and the juvenile court abused its discretion in doing so.

When the minors were removed, Trenton was under the age of three and Tyler was over that age.^[1] Accordingly, the court had the discretion to treat the siblings as a group and limit the reunification period for Tyler, who would otherwise have a reunification period of 12 months, to only six months, the period which applied to Trenton.^[2] (§ 361.5, subd. (a)(3).)

The exercise of the court's discretion is informed and guided by the provisions of section 366.21, subdivision (e), which states, in relevant part: â€