In re A.B.
Filed 1/21/14 In re A.B. CA1/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
In re A.B., a Person Coming Under the Juvenile Court Law.
J.V.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU,
Real Party in
Interest.
A140098
(Contra
Costa County
Super. Ct. No.
J12-01257)
I.
Introduction
J.V. (mother) seeks
Rules of Court, rule 8.452) of the juvenile court’s orders issued at a contested
six-month review hearing
terminating
her reunification services, and
setting a section 366.26
5, 2014, to determine a permanent
plan for her one-year-old daughter, A.B. (the minor). (See Welf. & Inst. Code, § 366.21,
subd. (e).)
title="">[1] Mother argues the juvenile court erred in
ruling that (1) there was not a substantial probability of return of the
minor within the next six months; (2) visits between mother and the
and (3) reasonable reunification services
were provided. We deny the petition on
its merits.
II.
Facts and Procedural History
The
minor came to the attention of the Contra Costa County Children and Family
Services Bureau (the Bureau) when she was born prematurely in 2012. Mother came to her first prenatal appointment
a few days before the minor’s birth, and tested positive for methamphetamine
use. While at the hospital, mother
admitted using methamphetamine but claimed she did not need drug treatment
because she could stop using if she wanted to stop. The minor was detained and placed in a foster
home shortly after her birth.
On September 6, 2012, at an uncontested hearing, the juvenile court sustained the
dependency petition, alleging mother’s drug use impaired her ability to care
for the minor. (§ 300, subd. (b).) Mother tested positive for methamphetamine use
in a court-ordered test that same day.
The court ordered mother to complete a plan of reunification, which
included drug treatment and random drug
testing, parenting instruction, and individual counseling.
Mother entered a residential drug treatment
program on September
11, 2012. The program was scheduled to last 90 days,
with the option of a 30-day extension or longer. Mother did well in the program, and on October 18, 2012, the minor was released to mother’s care while mother was still a resident
of the drug treatment program.
After completing 90 days of
inpatient treatment, mother left the program on December 10, 2012, with the minor. However,
once in the community, she failed to engage in any substance abuse aftercare
treatment. On January 31, 2013, the minor was again removed from mother’s care and placed in
foster care due to mother’s continued methamphetamine use. Mother missed two drug tests in December 2012,
and tested positive for methamphetamine use on January 18, January 28,
February 5, February 22 and February 28, 2013.
title="">[2] Mother reported the reason she tested positive
was that she was using over-the-counter ibuprofen and/or cold medications. On February 21, the court sustained a
supplemental petition pursuant to section 387 pertaining to mother’s positive
drug tests and failure to engage in her family maintenance plan.
In a report prepared for the six-month
review hearing, the Bureau recommended terminating mother’s reunification services
and setting a section 366.26 hearing. The social worker’s report detailed the recent
results of mother’s substance abuse testing.
Mother had missed two tests in February, four tests in March, four tests
in April, and two tests in May. She
tested positive for methamphetamine use on January 18, January 28, February 5,
February 22, February 28, April 25, May 1 and May 15. She had not tested at all during the months of
June, July and August. Mother had also
failed to participate in substance abuse treatment during this period of time.
On October 23, the court held a
contested six-month review hearing. During
her testimony, mother acknowledged she had “waited too long to start doing what
I’m supposed to do at the last minute,†but she indicated she was now starting
services. She testified she had almost
completed parenting classes, was attending substance abuse meetings, and had
been calling residential drug treatment programs seeking admission.
The juvenile court noted the “several
positive tests†during the course of the dependency, and asked mother if she
used drugs, mother responded “[n]o.†Likewise, when the court asked mother the last
time she used drugs, mother responded “Honest truth, I’ve never.†When the court inquired if mother had a
substance abuse problem, mother responded “[n]o.†The court then commented that “you appear to
me today to be under the influence.†Mother
denied this, testifying “[i]t’s because I’m a little bit nervous being up here.†The court ordered mother be drug tested
during a break in the hearing. Mother
tested positive for methamphetamine use.
At the hearing’s conclusion, the
court terminated reunification services and set this matter for a section
366.26 hearing on February 5, 2014. In refusing to extend reunification services,
the court indicated, “I don’t believe there’s even any probability that the
child could be returned to you safely in six months. You haven’t even gotten off square one to
acknowledge that you have a problem let alone begin to address the problem.†The court also suspended visitation between
mother and the minor, but indicated if “mother starts to test and she shows . . .
she’s not under the influence,†the court would reconsider its decision. Mother filed this writ challenging these
determinations.
and Scheduling a Section 366.26 Hearing
Mother first argues that the court erred
in terminating reunification services and scheduling a section 366.26 hearing
because there was a substantial probability the minor may be returned to her
within six months. The findings of the juvenile court made
pursuant to section 366.21 are reviewed under the substantial evidence test. (James
B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) All conflicts in the evidence are resolved in
favor of the finding, order, or judgment of the lower court, and all reasonable
inferences are made in support thereof. (In re Katrina
C. (1988) 201 Cal.App.3d 540, 547 (Katrina
C.).)
A court abuses its discretion in setting the section 366.26
hearing if the record establishes that “there is a substantial probability the
child may be returned to the parent [within six months], in which case the
court must continue the case to the 12-month hearing.†(M.V. v.
Superior Court (2008) 167 Cal.App.4th 166, 179-180, italics omitted.) In determining “substantial probability†of
return within the applicable time period, the juvenile court “should consider
the following factors along with any other relevant evidence: [¶] a. Whether
the parent . . . has consistently and regularly contacted and visited
the child; [¶] b. Whether the parent . . . has made
significant progress in resolving the problems that led to the removal of the
child; and [¶] c. Whether the parent . . . has demonstrated
the capacity and ability to complete the objectives of the treatment plan and
to provide for the child’s safety, protection, physical and emotional health,
and special needs.†(Rule
5.710(c)(1)(D)(i).)
In claiming she met
this criteria, mother points out she “had been regularly and consistently
visiting with her daughter,†and that early in the dependency process, she “successfully
completed a court-ordered treatment program.â€
Also, during mother’s testimony, she outlined the steps she was taking
to start complying with her reunification plan, such as participating in a
parenting class, although she admitted she had “waited too long to start doing
what I’m supposed to do at the last minute.â€
However, mother
wholly ignores the minimal progress she has made throughout the minor’s
dependency in addressing her drug abuse issues, which served as the basis for
the court’s jurisdictional order. Mother
continued to test positive for methamphetamine use throughout the minor’s
dependency. Moreover, she frequently
missed drug testing (the functional equivalent of a positive test). Most importantly, the record shows that mother’s
insight into the gravity of her addiction was essentially unchanged from the
commencement of the minor’s dependency. Despite
having participated in a residential substance abuse treatment program and
having the minor once again removed from her custody after she relapsed, mother
was still unwilling to face up to the fact, let alone the severity, of her
addiction. During her testimony, she
continued to deny that she had ever used methamphetamine. The juvenile court found her denials not
credible, and the court’s skepticism was confirmed by drug testing which
revealed mother was appearing in court under the influence of methamphetamine. “Such a dismal performance in the most
plan can hardly be viewed as regular participation in
Cal.App.4th 393, 398, disapproved on other grounds in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.)
Mother’s
after the dependency was initiated, her failed
rehabilitation, and her failure to take responsibility for her recent
finding that it was not substantially probable that the minor could be returned
to her custody within six months.
Accordingly, we conclude the court’s denial of further reunification
services and the scheduling of a section 366.26 hearing is amply supported by
this record.
B. Adequacy of Reunification
Services
Mother next argues that the evidence
was insufficient to support the court’s finding that the
reunification services she received were adequate. She claims the services
offered were not reasonably tailored to assist her because “the only thing [the
Bureau] did to address the mother’s methamphetamine relapse . . . was
give the mother the names and numbers of some drug programs, and directed her
to call to seek admission.â€
“[W]ith regard to the sufficiency of
reunification services, our sole
task on review is to determine whether the record discloses substantial
evidence which supports the juvenile court’s finding that reasonable
S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “We construe all reasonable inferences in
favor of the juvenile court’s findings regarding the adequacy of
efforts.†(In re Julie M. (1999) 69 Cal.App.4th 41, 46.)
At the outset, we note that mother
failed to challenge the adequacy of the reunification services offered in a
timely fashion. “If Mother felt during
the reunification period that the services offered her were inadequate, she had
the assistance of counsel to seek guidance from the juvenile court in
formulating a better plan[.]†(
404, 416.) A parent may not “wait
silently by until the final reunification review hearing
to seek an extended reunification period based on a
perceived inadequacy in the reunification
Services v. Superior Court (1997) 60 Cal.App.4th 1088,
1093.) Although mother was represented
by counsel throughout these proceedings, she did just that, waiting until after
reunification services were
terminated and the matter was before this court on a writ petition to raise
this issue. Mother
has waived the issue by failing to object below.
Even if we were to consider mother’s
untimely argument on the merits, the record amply supports the trial court’s
ruling that “by clear and convincing evidence that [the Bureau] has provided or
offered mother reasonable services which were designed to
aid her in overcoming the problems which led to the initial removal.†The proper focus of reunification
services is to eliminate the conditions that led to the
trial court’s jurisdictional finding. (
1463, 1474.) “[T]he record should show that
the supervising agency identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made
reasonable efforts to assist the parents in areas where compliance proved
difficult . . . .†(
414.)
Substantial evidence demonstrates
the Bureau’s efforts were more than reasonable.
Mother fails to acknowledge that she voluntarily ceased efforts to
comply with her reunification plan for a significant portion of the review
period and only started making last-minute strides when termination of
reunification services was imminent.
Reunification services are voluntary, and the social worker is not
required to “take the parent by the hand and escort [her] to and through
classes or counseling sessions.†(
1448, 1463, fn. 5.) In this case,
the record reflects that the Bureau complied with its obligation to provide
services, but mother failed to take advantage of the services offered to her.
also challenges the juvenile court’s order suspending her supervised
reinstatement if she could establish a pattern of testing clean for drugs. She contends the juvenile court
visitation because “[t]here is no sufficient factual basis in the record to
support a finding that visitation places the minor at risk of harm to her
physical safety and wellbeing.â€
Reunification services ordinarily
must include visitation, which must be “as frequent as
possible, consistent with the well-being
of the child.†(§ 362.1, subd. (a)(1)(A),
italics added.) Even after termination
of reunification services, visits must continue
unless the court determines they would be detrimental to the child. (§ 366.21, subd. (h).) In determining whether and under what
conditions to order visitation, the court must balance
the parents’ interest in the care, custody and companionship of their children
with the child’s well-being. (See
317.) The juvenile court has broad
Megan B. (1991) 235 Cal.App.3d 942, 953.) In reviewing for substantial evidence, we
resolve all conflicts in the evidence in favor of the court’s findings. (Katrina
C., supra, 201 Cal.App.3d at p. 547.)
Ample evidence supports the court’s
determination that continued supervised visitation would
be detrimental to the minor. Mother made
virtually no progress toward alleviating her substance abuse
problem, continuing to use methamphetamine right up until the contested
six-month review hearing. The court put
its reasoning on the record: “I will
tell you what my concern is. Mom appears
very obviously under the influence here in court today, and I do believe it
would be detrimental to subject the child to interaction with someone who is so
clearly under the influence of a central nervous stimulant. And I think it actually can pose a danger to
the child.â€
We reject mother’s suggestion that a
finding of detriment based on her ongoing methamphetamine use required evidence
that she engage in conduct that posted a threat to the minor’s safety. The juvenile court need not wait for mother’s
drug use to actually harm the minor before taking action. Mother’s ongoing drug use and failure to
comply with her reunification plan provides a sufficient basis for the court’s
finding of detriment if visitation was continued.
IV.
Disposition
The writ petition and request for a
stay are both denied. (§ 366.26,
subd. (l)(1); rule 8.452(h).) Given the need to proceed promptly with the
hearing set for February 5, 2014, this decision
is final immediately. (Rules 8.452(i), 8.490(b)(1)(A).)
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
and Institutions Code, and rule references are to the California Rules of
Court. Where,
as here, the minor was under three years of age on the date of her initial
removal from a parent’s custody, the court may terminate
a section 366.26 hearing if 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.†(§ 366.21, subd. (e).) “If, however, the court finds there is a
substantial probability that the child, who was under three years of age on the
date of initial removal . . may be returned to his or her parent . . .
within six months . . . the court shall continue the case to the 12-month
permanency hearing.†(Ibid.)
are in 2013.
