In re J.D.
Filed 1/10/13 In
re J.D. CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.D., a
Person Coming Under the Juvenile Court Law.
B244233
(Los Angeles County
Super. Ct. No. CK76851)
Y.A.,
Petitioner,
v.
THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES,
Respondent.
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
Petition for Extraordinary Writ: Denied.
Law
Offices of Katherine Anderson, Jennifer Pichotta and Jessica Jorgensen for
Petitioner.
John
F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Stephen D. Watson, Senior Associate County Counsel for
Real Party in Interest.
>
INTRODUCTION
Y.A. (mother) filed her
petition contending the juvenile court erred in finding, after a contested
hearing that there was a substantial risk of detriment to her two year old
daughter, J.D., if she were returned to mother’s custody. Petitioner also requested a stay of the
juvenile court’s setting of a December 19,
2012 implementation hearing under Welfare & Institutions Code
section 366.26.
title="">[1] We denied petitioner’s request for a stay of
the December 19, 2012 hearing
We hold that there is
juvenile court’s finding that return of J.D. to the physical custody of mother
would create a substantial risk of detriment to the physical and emotional
well-being of the minor under section 366.2, subdivision (e). The setting of a hearing under section 366.26
terminating parental rights was appropriate.
Because the court’s findings and orders were proper, mother’s petition
is denied.
Procedural History
On November 15, 2010, the
(DCFS) received a referral alleging general neglect of newborn J.D. by mother
and father. The referral alleged J.D.’s
mother and father (father) were methamphetamine users and mother used
methamphetamine days before giving birth to J.D. One of J.D.’s half siblings, J.G., had been
declared a dependant of the juvenile court in 2009 as a result of mother’s and
father’s substance abuse and domestic
violence. J.G. was released to his
father, and the dependency case was terminated on December 21, 2009. Mother had also lost custody of two other
children, who were residing with their father—not J.D.’s father.
J.D. was born without
complications. But on December 9, 2010, a doctor examined J.D. and
documented that J.D. had “skull deformity-congenital vs. acquired†as her face
“drooped†to the left side. The doctor
referred J.D. for further examination and x-rays.
After a DCFS social worker
interviewed mother, the social worker found mother had been trying to get into
a homeless program, but had not had stable housing for the past year. Mother admitted taking drugs for the last 10
years, including methamphetamine daily, and marijuana occasionally. Mother said father had left a substance abuse
program, but she did not know his current whereabouts and had no way of
contacting him. Mother agreed to refrain
from contact with father due to his leaving the substance abuse program and the
possibility he was using drugs. The
social worker made an unannounced visit to the motel where mother was and saw
father was staying with mother. Father
had been with mother consistently since November
19, 2010, and had used methamphetamine four days after leaving his
arrests for possession of and being under the influence of a controlled
substance, and father was currently on probation.
On December 14, 2010 DCFS filed a petition as to
J.D. under section 300, subdivisions (a), (b) and (j), based on mother’s and
father’s substance abuse and domestic violence.
On December 14, 2010 the juvenile
court found a prima facie case that J.D. was a child described by section 300,
subdivisions (a) and (b), and ordered the child detained. The juvenile court ordered family
reunification services, with mother to complete parenting, individual
counseling to address cases issues and domestic violence, and an inpatient
substance abuse program with testing.
Father was ordered to complete parenting, substance abuse counseling and
testing, 52 weeks of domestic violence
counseling, and family counseling.
The juvenile court also ordered monitored separate visits for mother and
father.
DCFS reported that J.D. was
placed with foster mother M.D. and that the parents had a history of domestic
violence and admitted to using methamphetamine in the past but denied current
use. Mother had negative drug tests on
November 22 and December 9, 2010. The DCFS report also noted J.D.’s physical
deformities. Both parents were visiting
regularly and visitation was going well.
DCFS filed an information
that J.D. was diagnosed with coronal craniosynostosis (skull deformity), was
awaiting brain surgery, and was replaced in a medical placement home with
foster mother E.P. DCFS further advised
that mother had enrolled in a residential drug treatment facility on January 11, 2011, but was terminated on January 27, 2011, for failure to comply with
program rules.
On February 10,
2011, the juvenile court sustained the section 300 petition and
declared J.D. a dependent of the court.
The juvenile court ordered monitored, separate visitation for mother and
father and ordered mother and father to participate in individual and parenting
counseling, and drug counseling with random testing. DCFS filed a report stating that J.D., now
five months old, was residing at St. Philomena Care Home. Doctors recommended J.D. undergo craniofacial
reconstruction at age 9 to 10 months.
Both mother and father were visiting regularly.
Mother was enrolled and
making progress in a parenting class at Pasadena City College, and in an
impact outpatient substance abuse treatment program. As of April
28, 2011, all of her urine drug tests had been negative. On May
12, 2011, the juvenile court found that mother and father were in
full compliance with their case plans.
In a report filed August 11, 2011, DCFS reported
that J.D. remained at St. Philomena Care Home, was happy and in good health,
although developmentally delayed, and was scheduled to undergo craniofacial
reconstructive surgery on August 3, 2011. Mother had regularly visited J.D.
DCFS reported that mother began
receiving individual counseling at Foothill Family Services on June 9, 2011, and had kept all
appointments as of July 21, 2011. Mother had enrolled in a parenting course at Pasadena City College and received a
letter dated July 8, 2011, stating that
all scheduled urine analysis testing was negative.
On August 11, 2011, DCFS updated the court
with the information that J.D. underwent craniofacial reconstructive surgery,
and was discharged to placement on August
7, 2011. Mother was at J.D.’s
bedside daily in connection with the surgery.
Mother, who was living at the home of J.D.’s maternal grandfather (her
father) since December, 2010, was asked to move out of her father’s home
because “he said I wanted to be out in the streets all the time.†Mother was now staying at her cousin’s house
but would not disclose the address.
At the sixth month review
hearing, the juvenile court found mother was in compliance with her case plan;
had regularly visited J.D.; and demonstrated the capability to complete the
objectives of her treatment plan and provide for J.D.’s safety, emotional
well-being, and special needs. The
juvenile court granted DCFS discretion to place J.D. with her paternal
grandparents, and set a 12-month review hearing for J.D. In its report, DCFS noted that J.D. was
residing with her paternal grandparents, was happy, social, had grown mentally,
and was in good health, although she was prescribed the use of a helmet and
eyeglasses. From December 1, 2011, Mother and father began
renting a two bedroom apartment together for $900 per month, and were relying
on father’s truck-driving income.
The parents visited J.D.
consistently, and the paternal grandparents, the parents and J.D. had gone on
two family camping trips together at which the parents were given more hands-on
experience with the child. The paternal
grandmother stated mother had to be reminded to change J.D.’s diapers or assist
with exercises, but had no concerns otherwise.
Mother completed drug
counseling and random drug testing. She
continued her individual counseling, and her therapist indicated mother had
insight into her challenges and was learning new skills. Mother completed 32 hours of parenting
classes at Pasadena City College, and attended 33
of 37 support group sessions in her domestic violence counseling. Mother and father had recently moved into an
apartment together and had to learn to live with each other without drugs. Because of mother’s and father’s criminal
histories relating to substance abuse and domestic violence and mother’s
previous loss of custody of three children, DCFS assessed a “high risk†level
of returning J.D. to parental custody.
At the 12-month review
hearing, the juvenile court found that returning J.D. to parental custody would
create a substantial risk of detriment to her physical and emotional well
being. The juvenile court granted mother
and father unmonitored visits of increasing length. There were no overnight or weekend visits
without court approval, but the monitor could be eliminated with the
concurrence of J.D.’s attorney. The
juvenile court found mother and father were in compliance with their case plans
and had consistently visited J.D. DCFS
then requested that the juvenile court order overnight and weekend visits for
the parents, which the juvenile court did.
The court set the 18-month review hearing for June 6, 2012.
On June 6, 2012, DCFS filed a report that
noted J.D. was still residing with the paternal grandparents. She had competed
infant stimulation and physical
therapy, but it was possible that she may undergo a procedure to remove
fluid from her left ear.
Mother was moving with
father from their current apartment to a two bedroom home. Mother had submitted to all random drug
testing with negative results for drugs and alcohol, and had completed 50 of 54
support group sessions and 32 hours of parenting class. Mother consistently visited J.D. and was
prompt in picking up and dropping off the child. DCFS assessed the risk to J.D. if returned to
parental custody as moderate and recommended the child be reunified with her
parents.
In a last minute
information, DCFS informed the juvenile court that the father was in federal
custody as of May 25, 2012. Father was one of 43 defendants in a drug
conspiracy case dating back to 2007, in which he was alleged to have made three
telephone calls in 2009 for the purchase of two and one half ounces of
methamphetamine. The juvenile court was
advised that a team decision making meeting occurred on May 31, 2012, in which
mother’s ability to maintain self sufficiency and meet J.D.’s needs was
addressed. Mother was to contact Public
Social Services regarding an application for Medi-Cal, cash aid and food
stamps, explore California’s Supportive and Therapeutic Options Program (STOP)
regarding funding for rental assistance, explore family preservation services,
and obtain the results of mother’s roommate’s Livescan fingerprints/background
check.
At the 18-month review
hearing, the court noted that father was in federal custody and
unavailable. Mother stated she had no job
and planned to support J.D. with benefits for the time being. Mother’s attorney
stated her understanding that mother had explored assistance and would be
following up with applications for Medi-Cal, cash aid and food stamps. J.D.’s attorney wanted the child to remain
with the paternal grandparents. The
juvenile court stated that it wanted “somebody in here to tell me what exactly
[mother] learned while she continued a relationship with [father] the entire
time,’ and “I need a professional in. I need to know that they know [mother]
actually has a way to pay the rent and take care of this child.â€
DCFS filed an interim
report. Mother had undergone gall
bladder surgery on July 27, 2012 and had not returned home. The therapist and domestic violence support
group facilitator stated that they were aware that mother and father had been
living together. DCFS reported mother’s
rent for her two bedroom home was $700 per month, and she was able to pay that
amount with financial assistance from the paternal grandparents.
Mother did not have a job or
any income to support herself and J.D., and the paternal grandparents said
mother could not live with them. Mother
was receiving $260 in food stamps for July and August, but was denied general
relief in San Bernardino County because she was married. J.D.’s paternal grandmother said mother had
not applied for any jobs, had not taken any initiative, cancelled her
appointment with the supplemental security income office, did not seem
concerned about the child, and did not have any sense of urgency to make her
life a “life.†The paternal grandparents
would pay mother’s 2012 August rent, but would not assist financially going
forward and would not allow mother to live in their home. DCFS was concerned that mother did not have
the means to support herself or J.D. and recommended terminating reunification
services.
At the contested 18-month
review hearing, the juvenile court held the contested hearing regarding the
return of child J.D. to mother under section 366.22. The DCFS social worker testified that mother
had no income and was not financially stable, was denied general relief, and
that while STOP funds and family preservation services were to be explored if
J.D. was reunified with mother, neither could be provided until the child was
in the home with mother. Mother’s
domestic violence counselor testified that mother had completed 52 weeks of
counseling and was equipped to avoid domestic violence in the future.
Mother testified that she
had learned to address domestic violence and had been looking for a job. She said her monthly rent was $750, that
J.D.’s paternal grandmother had been paying it, and she had no source of
income. Mother said she planned to look into a program for career training in
order to support herself and J.D. if she were returned to her. The juvenile court found mother’s testimony
credible, stating, “I’m okay with that (the progress) she’s made.â€
The juvenile court said both
parents complied with and learned from their case plans. It said it was not concerned about domestic
violence, because father was in custody where he would likely remain for a
significant time. The court, however,
stated that the paternal grandparents would no longer financially support
mother, and “there is a detriment to return†of J.D. to mother. The juvenile court also stated that J.D. was
developmentally delayed, had a skull deformity, was visually impaired, had a
high risk for amblyopia, and had “very special needs, including doctor’s
appointments.†The juvenile court stated
that “[mother] is in the process of getting her own life in order,†and “to
place a child with no issues back in a home that mother doesn’t have would be
difficult enough, but to place a child with very special needs, requiring very
special attention with a parent who’s working on her own issues, her own life,
and her own independence is simply not where we are right now.â€
J.D.’s attorney stated
mother was not prepared to be a safe parent to J.D. The DCFS attorney said there was no way J.D.
could be sent home safely. The juvenile
court observed that, 20 months after the inception of the case, mother’s plan
was, “I think I can probably do it if you help me in the following way,†and
“if you put this into place, it might help.â€
The juvenile court found that
returning J.D.’s to mother’s care would create a substantial risk of danger to
the physical or emotional well-being of the child, terminated reunification
services and set a section 366.26 hearing for December 19, 2012. On August 31, 2012, mother filed a notice of
intent to file writ petition challenging the June 6 and August 22, 2012,
findings and orders of the juvenile court.
DISCUSSION
Mother
contends that substantial evidence did not support the court’s finding that J.
D. would suffer substantial risk of detriment if returned to mother’s
care. The juvenile court is directed by
section 366.22 to return a child to the custody of his parent(s), unless the
court finds that the return would create a substantial risk of detriment to the
safety, protection or physical or emotional well-being of the child. At a section 366.22 hearing, the juvenile
court must either return the child to the parent or set the matter for a
section 366.26 hearing.
A juvenile court’s
determination regarding substantial risk of detriment at a section 366.22
hearing is reviewed for substantial
evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401;
Cal.App.4th 758, 763-764.) Under this
standard, we examine the whole record in a light most favorable to the findings
and conclusions of the court and defer on issues of credibility of the evidence
and witnesses. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) We uphold the juvenile court’s orders and
findings if any substantial evidence, contradicted or uncontradicted, support
them, resolve all conflicts in support of the court’s determinations, and
indulge all legitimate inferences in favor of affirmance. (In re
John V. (1992) 5 Cal.App.4th 1201, 1212.)
Mother testified that J.D.’s
paternal grandparents had been paying her monthly rent of $750 and admitted she
had no source of income. Because J.D.’s
paternal grandparents said they would no longer financially support mother, and
would not allow her to stay in their home, the juvenile court found that “there
is a detriment to return.â€
Substantial evidence
supported the court’s finding of detriment despite mother’s assertion she was
residing in a two bedroom home. There is
evidence that mother was not able to pay rent for the home; J.D.’s paternal
grandparents were finished providing financial support to mother; they declined
to allow her to live in their home; and mother had no support or place to live
for her child J.D.
Mother provided no reason to
believe she would rectify her inability to provide housing for J.D. Mother admitted she had no job and stated she
planned to support J.D. with benefits for the time being. Her attorney said mother would be applying
for assistance such as Medi-Cal, cash aid and food stamps. By the August 22, 2012 contested hearing,
however, mother still had no job, no income, and no support for herself or
J.D. Although mother said she needed to
“try harder†to get a job, the paternal grandmother said mother had not taken
any initiative to apply for any jobs.
Mother was also denied
general relief in San Bernardino County and had only $260 in food stamps for
July and August. The juvenile court
noted that 20 months after the inception of the case, mother’s plan was, “I
think I can probably do it if you help me in the following way.†Given mother’s lack of housing and lack of
effort in obtaining income or aid, the juvenile court found return of the child
would be detrimental. This finding was
supported by substantial evidence, especially in light of J.D. being
developmentally delayed and having “very special needs.â€
Mother argues that concern
over her financial stability was speculative, and DCFS had programs for parents
in her position. But mother delayed in
obtaining assistance. Over two months
later at the 18-month review hearing, mother was still without income and still
only planning to look into another program.
Thus, there is evidence that mother failed to take the steps necessary
to ensure she could provide appropriately for J.D. The evidence at the 18 month review hearing
was that mother had no income, would have no further financial support from the
paternal grandparents, and was not welcome in the grandparents’ home.
Mother contends she was in
compliance with her court-ordered case plan.
But compliance with court-ordered programs is not determinative and does
not require return of a child under all circumstances. (In re
Dustin R. (1997) 54 Cal.App.4th 1131, 1142-1143.) The juvenile court held that it was aware of
mother’s compliance and was comfortable with what mother said regarding
benefits from her programs. But
regardless of mother’s compliance, the juvenile court found that it could not
place J.D. into a “home that mother doesn’t have . . . .†Should circumstances change, nothing
precludes mother from filing a modification request under section 388.
There evidence that mother
had been in a violent relationship with father and had been abusing drugs. Father had been a drug abuser and inflicted
violence on mother. Daughter J. D. was
an infant born when mother was still taking drugs and had special needs
including a skull deformity and vision impairment from a drooping eye. While mother and father concluded their DCFS counseling
and drug programs, father was incarcerated for a federal drug crime and was no
longer available to support mother and daughter. Despite spending 18 months in counseling and
assistance, mother had not obtained a job or source of income, obtained housing
or even arranged for general relief for food, housing or health care. Counsel for J.D believed that mother was
incapable of supporting and caring for her special needs daughter.
In In re John V., supra, 5 Cal.App.4th, at pp. 1211-1212, the court found
that a mother’s pattern of instability, which included no permanent housing,
sporadic and frequently changing employment, inability to budget or allocate
money, and inappropriate choices of living partners persisting from the
beginning of the children’s dependency to the 18-month review, demonstrated no
progress in resolving the problems that led to the children’s out-of-home
custody. This constituted substantial
evidence supporting the trial court’s decision that it would be detrimental to
return the children to mother’s custody.
The same reasoning is applicable here and warrants the juvenile court’s
conclusion that J.D. would suffer a substantial risk of detriment if returned
to mother.
Once the juvenile court
determined it would not return J.D. to mother, it was required to set the
matter for a section 366.26 hearing. (
Cal.App.4th 1490, 1502.) Accordingly,
petitioner’s efforts to preclude the section 366.26 hearing set for December
19, 2012 is rejected.
DISPOSITION
Mother’s petition for a writ
is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
