In re K.W.
Filed 7/3/12 In
re K.W. CA1/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
In re K.W. and
M.F., Persons Coming Under the Juvenile Court Law.
C.S.,
Petitioner,
v.
THE SUPERIOR COURT OF HUMBOLDT COUNTY,
Respondent;
HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Real Parties in
Interest.
A134967
(Humboldt County
Super. Ct. Nos. JV100101, JV100102)
I. INTRODUCTION
Petitioner C.S., the mother of
half-siblings K.W. and M.F., seeks extraordinary writ review of
contested 18-month review hearing on family reunification. The court terminated
visitation return to being supervised, and set a hearing pursuant to Welfare
and Institutions Code section 366.26
for permanency planning.
name="_ftnref2" title="">[2] Mother contends the court erred in failing to
return the children to her custody and in finding that unsupervised visits were
detrimental to the children. We will
deny the petition.
A.
On July 14, 2010,
County Child Welfare Services (the Department) took six-year-old K.W. and
three-year-old M.F. into protective custody due to inappropriate housing
conditions and mother’s inability to recognize the severity of those
conditions. The Department filed a
section 300, subdivision (b), petition as to each minor, alleging substantial
risk of physical harm or illness due to mother’s willful or negligent failure
to provide them with adequate food and shelter and mother’s substance abuse or
mental illness, which rendered her unable to care for the children.
According to the
into protective custody when officers of the Fortuna Police Department
responded to a call about a fight between mother and another person at mother’s
home in Fortuna. Officer Elebreck
reported that the home had no running water and the children were using the
bathtub as a toilet. The home had no
edible food, no working stove, and was rat-infested. Social worker Marta Perez responded to the
residence and observed that the bathtub and toilet were both filled with
garbage and feces, and the kitchen sink was overflowing with dishes and
garbage. The refrigerator contained
moldy food, there were a few frozen items in the freezer, and the pantry
cupboards were empty. There were piles
of clothing throughout the house, and a strong smell of urine in the children’s
bedrooms.
Perez went to the police station to
pick up the children. She also met with
mother, who presented as “agitated and distressed,†and did not understand why
she was being arrested. When Perez tried
to explain the concerns about the family’s housing, mother interrupted, stating
that it was not her fault and that her roommate had “trashed†the house after
they got into a fight. Mother stated
that limited resources made it hard for her to maintain the house to proper
standards and reported that she was unable to pay her $1,700 water bill.
The Department had received nine
referrals regarding mother since August 2005.
Five of the nine referrals were assigned for investigation. All five alleged neglect of one or more of mother’s
four children.
title="">[4]
Mother contested detention; after
the hearing, the court entered findings and orders as to both minors.
B.
Mother contested jurisdiction. After a hearing on August 10, 2010, the court
sustained the petition.
At the disposition hearing, the
court considered disposition reports filed in each of the minors’ cases.
The disposition report
stated that mother appeared to be in denial about the circumstances that
brought the matter before the court in that she described conditions at the
home as not that bad and consistently shifted blame onto others. Mother had agreed to take a drug test but had
not yet done so. Mother’s mental health
assessment had been conducted, but because mother had not signed a release, the
only information the Department could obtain was that she showed up for the
assessment. Mother reported that the
assessment yielded no recommendations and stated that she would contact the
clinician so that information could be released to the social worker. At the time the report was written, mother
had not yet done so.
The report stated that “mother loves
all of her children deeply and has previously successfully parented her
children without the intervention of Child Welfare Services.†By way of explanation, the report noted that
mother’s eldest child was born in 1995 and CWS did not investigate referrals
against mother until 2005. Mother had
secured employment and was working.
The social worker indicated that
mother needed to actively participate in her case plan and secure permanent
housing. Despite mother’s having
reported that she paid monthly rent and could stay in her residence, the social
worker learned that mother had not paid rent in approximately two years and was
to vacate the residence as soon as possible.
The social worker visited the residence in late August 2010, and found a
mound of toilet paper and tissue on the side of the house, a bedroom blocked
off by clutter and garbage, still no running water in the house, and still four
broken windows with glass in them.
Mother stated she was unaware of broken glass or feces until the social
worker pointed out the conditions.
Mother had begun to engage in some services but felt they were not
necessary to remedy the issues that led to intervention by the Department. Based on the foregoing, the social worker
recommended that the minors be made dependents of the court and mother be
offered family reunification services.
The court so ordered. Visitation
was set at a minimum of four hours per week, supervised.
Mother’s case plan required her to:
(1) obtain a mental health assessment and follow any recommendations; (2)
access counseling services to assist with housing; (3) attend a parenting
program; (4) attend budgeting workshops to learn how to manage resources; and
(5) periodically submit to random drug testing.
C.
The six-month status review hearing
took place on April 19, 2011. The court
considered the Department’s Status Review Report, received March 3, 2011, and
an April 14, 2011, report submitted by the Court Appointed Special Advocate
(CASA).
Both reports recommended that mother
receive six more months of services.
According to the Department’s report, mother had not yet found safe and
stable housing. She agreed to attend
counseling at Hum Works for housing assistance, but did not want to participate
in transitional housing services. Mother
had not addressed her mental health issues or attended counseling sessions as
recommended by her mental health assessment.
She completed a parenting class.
Between January and March, she telephoned the children “practically
every night,†and visited them regularly, but visits had to be moved from the
foster parents’ home to Family Connections Center because, according to the
foster parents, mother was unable to follow their house rules. This included refusing to leave by 8:00 p.m.
and, on one occasion, bringing her boyfriend whom she had repeatedly accused of
molesting the girls on several occasions and who had been arrested in 2008
based on those allegations.
The children were reported to be
doing well in a non-related extended family member foster home in Eureka after
having been removed from their first placement with an aunt when police found
them at mother’s residence in violation of a court order. Each child had expressed that she missed her
mother and would like to be returned to her care.
The court adopted the recommended
findings and orders, including that reasonable services had been provided and
that mother’s progress on her case plan was minimal.
At an interim review hearing on June
7, 2011, counsel for the Department informed the court that mother tested
positive for methamphetamines on April 15, 2011. The court ordered a substance abuse (AOD)
assessment.
D.
The Department’s 12-month status
review report, dated August 9, 2011, indicated that mother had made significant
progress in completing her case plan objectives in the past six weeks and had
started to take responsibility for her actions that led to court intervention,
but that she was currently homeless and living with friends and family in the
Eureka and Fortuna areas.
When confronted about the positive
drug test in April 2011, mother blamed her diet pills but could not identify
what they were. On April 21, 2011,
mother refused to drug test even though the social worker drove her to the
testing site. Mother said she took a
diet pill that day and was afraid a drug test would come back positive. On May 3, 2011, the social worker gave mother
a letter instructing her to drug test before her next visit on May 5. Mother failed to drug test before that date;
she said she did not open the letter and so was unaware that she was supposed
to drug test.
On approximately June 10, 2011,
mother met with a social worker at the Multiple Assistance Center (MAC) to do
an intake for the residence. The social
worker reported that mother appeared to be under the influence of
methamphetamines because she was jittery, talking very fast, and her speech
made no sense. Mother denied any drug
use and said she only took diet pills.
The social worker told her that to continue the intake process, she
would have to show three weeks of clean drug tests and to complete an AOD
assessment. Mother agreed.
Mother completed her AOD assessment
on June 30, 2011, and was found not to meet the criteria for treatment. She was drug tested on June 20 and 28, 2011,
and the tests were negative. Mother said
she had stopped taking diet pills. At a
supervised visit on July 5, mother appeared more coherent and relaxed than in
the past.
Mother completed a mental health
assessment at HumWorks on June 23, 2011.
The clinician stated that mother did not meet the medical necessity for mental
health services standard, but referred mother for case management services to
help with her housing search. Mother was
homeless and willing to go into the MAC if no other housing option was
available.
Mother consistently attended visits
with the children twice a week for two hours at the Family Connection
Center. The Department stated that she
was “very compliant with visitation,†and that she was “very appropriate and
loving with the children.†In turn, the
children were “very affectionate and appear bonded with their mother.†The Department recommended that visits be
unsupervised.
The children were still doing well
in their placement. Mother felt that the
main barrier preventing her from reunifying was poverty. She was looking for a job and safe and
adequate housing, but expressed that she needed more time. The Department and CASA both recommended six
more months of services.
The court found that mother had made
adequate progress on her case plan and that she had demonstrated the capacity
and ability to complete the case plan objectives. The court ordered six more months of services
and modified the case plan to provide mother with unsupervised visits. An interim review was set for November 14,
2011.
At interim review hearings, the
court considered the foster parents’ request for de facto parent status. Mother and the Department both objected to
the request; counsel for the minors supported the request. Following the contested hearing, the court
took the matter under submission on December 7, 2011. On December 21, 2011, the court filed orders
granting the foster parents’ requests for de facto parent status of both
children.
At a hearing to set the contested
18-month review, counsel for the minors requested that mother submit to a hair
follicle drug test prior to the hearing date and that the test results be
reported to the court. Mother indicated
through counsel that she had no objection.
E.
The court received the Department’s
original 18-month status review report on December 21, 2011. According to the report, mother was still
homeless. She drug tested regularly in
September, October, and November 2011:
nine tests were negative; two were positive for methamphetamines. Mother adamantly denied any substance abuse
and stated that the positive test results were due to her allergy medication
and/or diet pills, but she did not provide the social worker with proof of a
prescription for diet pills or allergy medication.
The social worker stated that “[b]ut
for lack of housing, [mother] does not pose significant risk of harm to the
children. Unfortunately, [mother] has
exhausted the amount of time she may receive family reunification services and
a permanent plan for the children needs to be made.†The social worker also stated that mother and
the children were bonded and that it would be detrimental to sever that bond by
putting the children up for adoption.
The Department recommended a permanent plan of guardianship with a
relative.
Mother contested the recommendation
and the court set a trial date of February 1, 2012.
On January 24, 2012, the court
received from the Department an addendum to its 18-month status review
report. In the addendum, the social
worker stated that mother had moved to a two-bedroom apartment in Carlotta
which she was sharing with a roommate.
Mother wanted the minors to live in one of the bedrooms with her, and
the roommate would have the other bedroom.
The roommate was planning to move out in a few months at which time mother
and the minors would have the apartment to themselves. Mother’s rent was $350 per month which was
being paid by her mother. Mother was
confident she could pay rent herself when the children were returned to her and
she qualified for cash aid assistance.
Mother stated that she wanted the minors to remain at their current
school and would arrange daily transportation with help from her family.
The report stated that mother had
found safe and stable housing and had mitigated the issues that brought her
before the court. Mother completed case
plan activities which included a mental health evaluation, an alcohol and drug
assessment, and had completed random drug screenings. The Department recommended that the minors be
reunited with their mother and that family maintenance services be
provided.
A second addendum report by the
Department was provided to the court on February 1, 2012. According to the report, a Team Decision
Making meeting was held in late January to create a transition plan for the
minors in the event that they are reunified with mother. Due to unspecified difficulties with creating
the plan, it was decided that the Department would create the plan if they are
returned to mother.
At a pre-trial hearing on February
21, 2012, counsel for the minors stated that mother still had not submitted to
the hair follicle testing. Counsel for
the Department stated that the test was scheduled for February 22, with the
results due on March 1, 2012. Counsel
for the minors also filed an at-issue memorandum/pretrial statement, taking
issue with the Department’s recommendation of reunification. Counsel noted a number of unanswered
questions, including issues pertaining to drug testing and positive drug tests,
mother’s driver’s license, her living at the uninhabitable home until very
recently and still storing her belongings there, rent and utilities for the new
apartment, the roommate’s background, mother’s leaving the children at a motel
with a man alleged to be involved with illegal drugs, and a recent charge
against mother for possession of a controlled substance.
F. Contested 18-Month
Review Hearing
The court heard testimony on March 7
and 8, 2012, and received into evidence the status review report and two
addenda from the Department.
name="_ftnref6" title="">[6]
Social worker Alyssa Bowles-Martinez
testified that she had been assigned to this case since July 2010. She authored the reports and recommendations
for return of the minors to mother. She
testified that, in her professional opinion, returning the minors to mother
would not place them at significant risk of harm. Even if mother had submitted to the hair
follicle test and assuming it had come back positive, it would not change
Bowles-Martinez’s recommendation that the children be returned to mother because
the Department had been “very successful in working with families with AOD
issues,†and services could be provided to mother in the family maintenance
plan.
The social worker remembered meeting
with mother and the minors’ counsel at mother’s new apartment and discussing
mother’s driver’s license situation, but did not remember whether mother had a
valid license at that time. She did not
know whether mother currently had a valid license. Bowles-Martinez did not conduct a criminal
background check of mother’s new roommate because parents have the right to
live with whom they choose and it is “their job as parents
to . . . make good choices in that regard.†Bowles-Martinez testified that she was aware
that, in December 2011, mother had left the minors alone in a hotel room with a
man named Al Machado who had been on probation five times for violations of the
Health and Safety Code. When
Bowles-Martinez asked mother about this, mother said Machado was a friend and it
was only for 15 minutes. At the time she
spoke with mother about this, Bowles-Martinez was unaware of mother’s arrest
for possession of Xanax pills.
Bowles-Martinez asked mother to continue to drug test before visits with
the minors to show that she continued to be clean and sober. From late November until the end of the year,
although mother stated that she drug tested in Fortuna “a few times,†the
social worker received no results from any tests. The social worker had a conversation with
mother about needing to verify the tests, but mother provided no way for the
social worker to follow up. The social
worker acknowledged that mother tested positive for methamphetamines three
times in 2011, explained it as being caused by diet pills, but stated that she
did not know what the diet pills were.
The social worker was also aware that mother refused to drug test on
September 9, 2011, because she used alcohol the previous night.
Bowles-Martinez testified that the
last time she spoke with mother about the hair follicle testing was the
previous day. Mother stated that she had
not submitted to the test because she could not get time off from the job she
started in January 2012. The social
worker testified that this was “a reasonable reason to not get the hair
follicle test.â€
The social worker believed she had
asked mother if mother was on a lease agreement for the new apartment, but she
did not remember what mother said. She
also did not know whether mother was paying any of the rent or utilities
herself. Mother told Bowles-Martinez
that she recently pled guilty to a criminal offense, but Bowles-Martinez did
not know whether she was facing any jail time.
Bowles-Martinez stated that in February 2012 she learned of mother’s
arrest in January 2011 for possessing 208 Xanax pills, and that mother told her
she got them at a garage sale. Regarding
mother’s explanation that her inhaler caused her drug test results to be
positive for methamphetamines, Bowles-Martinez testified that she investigated
mother’s claim and concluded that the medication would not cause a positive
drug test.
Mother’s counsel questioned
Bowles-Martinez about mother’s employment and the hair follicle testing. Bowles-Martinez testified that the Department
offered mother transportation to and from the testing and arranged for the
testing site to make special accommodations for mother’s work schedule.
Mother took the stand and testified
that her rent and utilities were paid and she had no reason to think she would
be unable to pay her rent for the next month.
She was unsure whether she intended to stay in the apartment, stating
that it depended on the minors’ school.
She currently worked for two employers:
one since January 2012 performing in-home care and housecleaning duties;
the other had been off and on since September 2011 and involved
housecleaning. Mother stated that she
did not refuse to submit to a hair follicle test; rather, she was unable to get
the time off work.
Minor’s counsel asked mother about
the Xanax pills. She testified that the
pills came from a storage unit sale, but that she did not know what kind of
pills they were. She acknowledged that
there was a warrant for her arrest in February 2012 for the case involving the
Xanax pills, but stated that she was not aware that she was supposed to go to
court. She denied having been arrested
in January 2011. Regarding a snort straw
with white powdery residue and two containers of marijuana that police found in
her residence when they found the Xanax pills, mother said she did not know the
items were in the house and she believed they were “from a previous
roommate.†She conceded having left the
minors alone with Machado in the motel room, but stated that it was “[f]or less
than five minutes.†Machado was her
roommate at the time. Mother said she
was not aware at the time that Machado had been on probation for drug
violations, but she knew he had been on probation and was receiving AOD
services.
Regarding the status of her driver’s
license, mother testified that she was not sure whether she had a valid license
or not. Usually someone else would drive
her places, but she acknowledged also driving herself. She did not have a license in her possession
because a police officer had taken it away, telling her that her license had
been “terminated.†If her children were
returned, she would have friends or family get them to school and she would
probably live with them during the school week at her sister’s house.
Mother testified that the last time
she drug tested was in January at the hospital in Fortuna, but when she went
back to get the results, “they said they couldn’t locate them.†Mother stated that she always signed a
release so the Department could access the results.
Regarding water bills, mother
testified that she had paid the two bills for which she was responsible. A third water bill had not been paid; that
account was not in her name. It was
mother’s understanding that if her current roommate moved out, the water and
electric bills could be listed in her name.
Mother testified that her father is
a car dealer. The car she was driving
belonged to him and was insured by the dealership. Mother did not know if her father’s policy
covered her driving without a license, but she believed she was covered.
Regarding visits with the minors
since January 2012, mother stated that she had missed one visit and was late
“pretty much every time.â€
The de facto/foster mother, Gretchen
R., was called on behalf of the minors.
She testified that she and her husband had been foster parents for the
minors since December 2010. She
testified regarding difficulties with visitation because of mother’s habitual
lateness.
In closing, counsel for the
Department reiterated its recommendation that the minors be returned to
mother. Mother had made “tremendous
strides,†as could be seen by comparing the photographs of her new apartment
with those of the house from which the children had been removed. Counsel acknowledged that mother was not
perfect, but cited the social worker’s testimony regarding family maintenance
services and AOD services that would be available to mother with the
Department’s continued monitoring. The
Department did not believe there was significant risk of harm to the children
or that there were any safety issues.
Counsel commended mother for remaining employed, renting a nice
apartment, and making plans for the minors.
Mother’s counsel argued that no
evidence had been presented to rebut the Department’s assessment of the
appropriateness of the new apartment and mother’s living situation. The Department concluded it was in the
children’s best interests to be returned to mother. There was no evidence that any concerns “rise
to the level to establish substantial risk of detriment required to overcome
the mandate of return under 366.22.â€
Mother was employed, had maintained her employment and housing for about
two months. The children were bonded to
mother, and the Department believed it would be detrimental to sever that bond. Counsel opined that the social worker had
worked hard on this case, knew mother and the family, and had considered all
the concerns and had made plans to account for them.
Counsel for the minors opposed
reunification. He argued that the
“elephant in the room†that was being ignored was “the drug problem.†Despite mother’s being in possession of 208
Xanax pills in January 2011 and having just pled guilty to some form of
substance abuse charge, the social worker testified that she did not know what
the possible sentence was, including whether mother might have to go to jail,
and stated that it was not of concern to her.
Counsel pointed out that mother had not drug tested in the last three
months despite being told to do it before every visit with the minors, that
mother had agreed to the hair follicle test but had not done it, and that she
continued to deny the positive tests for methamphetamines. Counsel questioned why visits with the minors
were unsupervised when mother had been told that refusing to test would be
treated as a positive result. Counsel
also expressed concern that the Department had not conducted a criminal
background check of mother’s new roommate and apparently was not concerned that
mother was driving without a license.
Counsel questioned how the minors would even get to school on time when
mother had no license, was in denial of any drug problem, and was chronically
unable to get to visits on time. He
pointed out that the Department had been recommending termination of services
until, “all of a sudden,†mother found this housing situation and now “everything
is fine. And that’s just completely
ignoring a whole body of evidence and concern that’s out there.â€
Counsel for the de facto parents
joined the arguments of minors’ counsel.
She argued that the Department appeared to have narrowed the case down
to simply an issue of mother’s housing, but that that was not the only issue
that brought this matter to court. She
expressed concern that the social worker did not look into the driver’s license
issue or check on the background of mother’s new roommate, and was not
concerned about the drug issue. Counsel
stated her opinion that “the drug issue is a major concern.†She also joined minors’ counsel’s questioning
why visitation was now unsupervised in light of the various concerns. She pointed out that the minors had been
living with the R.’s since December 2010, and the R.’s were willing to become
their legal guardians and provide a permanent home.
Upon submission by all parties, the
court issued its ruling from the bench.
During the time following the 12-month review on August 9, 2011, the
court found that mother “really hasn’t engaged the process at all.†The court stressed that “[t]his is not a case
of just a home.†The 18-month review
should have taken place on January 12, 2012, which was also on or about the
date mother moved into the new apartment.
The court noted that, until mother found the new apartment, the
Department was recommending discontinuing services for mother and moving to a
permanent plan for the minors. The
Department changed its recommendation, but it failed to address the factors
that caused the deterioration of the family’s home in the first place. Mother still did not accept responsibility
for the positive drug tests, and continued to minimize and to blame
others. She denied making statements the
social worker testified to, and blamed the judge for making her plead to the
being arrested for the Xanax pills, and the court would not know about it at
all but for the fact that a bench warrant issued in February 2012. Nothing demonstrated to the court that
returning the minors to mother would not constitute returning them to the same
chaos from which they were removed. She
chose a home “in rural Carlotta†although the children are attending school in
Eureka; when asked how she would get the children to school, she talked about
moving. “Even if she’s in a wonderful
place now, we don’t know what her next plan is.
That, frankly, isn’t substantial and does not provide for the safety and
protection of the children.†The court
also found it problematic that the Department did not check into mother’s new
roommate, particularly with mother’s history of not protecting the children. The court found the Department’s sending
mother for an AOD assessment without providing information to the clinician was
a waste of time and did not produce anything meaningful to the court. Mother repeatedly failed to drug test, and
then also failed to go in for the hair follicle test despite being told in
court on February 21 that it was necessary and despite the social worker’s
offer of assistance and the lab’s flexibility with timing. The court was concerned that the Department
had accepted mother’s excuse without investigating further. The failures to test are deemed a series of
positive tests, but there was no information on the extent of what mother’s
drug use may or may not be, mother was still in “complete denial,†and to
assume that the situation could be handled via family maintenance services
without affecting the safety of the children was “really concerning†to the
court. The court noted that the
Department had not explored how the children’s needs would be met on a
day-to-day basis with the employment schedule mother outlined.
The court described the legal
standard to be applied: The court “must
return the children to the parent’s custody unless there is proof by
preponderance of the evidence that return to the custody of the parents would
create a substantial risk of detriment to the children’s safety, protection,
physical or emotional well-being, and that failure to participate regularly and
make substantial progress in the court ordered treatment program is prima facie
evidence that return would be detrimental . . . [to] the
children.†The court reviewed and
considered the social worker’s reports and the reports of CASA. The court found that in the time since the
12-month review hearing in August 2011, mother did “little or nothing to be
working on her service plan at all.â€
Specifically, the court noted mother’s unwillingness to drug test or to
address the substance abuse issues, and her denial of the problem and failure
to take responsibility. Mother failed to
fully avail herself of the services that were offered, and the court believed
that returning the children to mother “would be placing them back into the same
chaos and harm [from] which they were removed.â€
The court terminated family
reunification services to mother and ordered that the minors remain dependents
of the court. The court found, by a
preponderance of the evidence, that return of the minors to mother would create
a substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the minors. The
court set the section 366.26 permanency planning hearing for June 27,
2012. Pending an updated case plan and a
hearing in two weeks, the court temporarily ordered visits to be supervised,
finding unsupervised visits detrimental to the children.
Mother timely filed a petition for
extraordinary writ (Cal. Rules of Court, rules 8.452, 8.456) challenging the
orders issued by the court and requesting a stay of the section 366.26
hearing. The Department did not file a
response to the petition. We granted the
stay request.
III. DISCUSSION
A.
Pursuant to section 366.22,
subdivision (a), “. . . the permanency review hearing shall
occur within 18 months after the date the child was originally removed from the
physical custody of his or her parent or legal guardian. The court shall order the return of the child
to the physical custody of his or her parent or legal guardian unless the court
finds, by a preponderance of the evidence, that the return of the child to his
or her parent or legal guardian would create a substantial risk of detriment to
the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment. . . .â€
Mother challenges the sufficiency of
the evidence supporting the juvenile court’s finding that return of the
children to her care would create a substantial risk of detriment to their
safety, protection, or physical or emotional well-being.
“The issue of sufficiency of the
evidence in dependency cases is governed by the same rules that apply to other
appeals. If there is substantial
evidence to support the findings of the juvenile court, we uphold those
findings. [Citation.] We do not evaluate the credibility of
witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile
court’s order, and affirm the order if supported by substantial evidence even
if other evidence supports a contrary conclusion. [Citation.]
The appellant has the burden of showing the finding or order is not
supported by substantial evidence.
[Citation.]†(
947.)
The court found that, from the time
of the 12-month review in August 2011 to the 18-month review in March 2012,
mother “really hasn’t engaged the process at all,†other than finding a place
to live. The court emphasized that the
case was about more than finding a home, and read from the section 300,
subdivision (b)(2), allegations of the original petitions to the effect that
mother’s substance abuse and/or mental health issues rendered her unable to
care for the children and may have contributed to her inability to recognize the
severity of the unsanitary conditions in the home; she was in denial and blamed
others for her problems. The court noted
that the home must have been habitable at one time before its condition
degraded, and that the issue of what caused the conditions of the home had
never been addressed.
The record supports the court’s
finding of detriment. One of the court’s
primary concerns was mother’s failure to acknowledge or address the issue of
substance abuse. The Department reported
that mother drug tested 11 times between September 19 and November 18,
2011. Two of those tests were positive
for methamphetamines; mother blamed her allergy medication and/or diet pills,
but as of the date of the report (January 10, 2012), mother had not provided
the social worker with a prescription for either allergy medication or diet
pills. Despite being required to drug
test before visiting with the children, mother did not drug test after November
18, 2011. Despite agreeing to a hair
follicle test, and despite the social worker’s offer of assistance and the
lab’s agreement to be flexible with scheduling, mother failed to submit to the
test and blamed her work schedule. In
sum, the court had no information on the extent of mother’s drug use, and was
understandably concerned about the Department’s assumption that any problem
could be dealt with in maintenance services without affecting the children’s
safety.
With respect to mother’s housing,
the record shows that she found the apartment at the very end of the 18-month period
in January 2012. It was unclear whether
mother had paid any of the rent herself, whether she would be able to afford to
pay rent and utilities for the apartment if her roommate moved out, and whether
she would be allowed to stay in the apartment if the roommate moved out. The court expressed concern that mother chose
a home in “rural Carlotta†when the children were “successfully attending
school here†[Eureka], and that, when asked how she would get the children to
school, she talked about living elsewhere.
In addition, it appeared that mother
did not have a valid driver’s license although she admitted to driving. She left the children alone in a motel room
for between 5 and 15 minutes with a man who had a history of being on probation
for drug offenses. She did not tell the
social worker when she was arrested, and the court would not have known about
it at all if a bench warrant had not issued in February 2012. She blamed the judge for making her plead
guilty to being in possession of a controlled substance without a
prescription.
These circumstances reflect mother’s
inability or unwillingness to fully avail herself of services and do everything
possible to meet her children’s needs and provide a safe and stable home for
them. The juvenile court did not err in
finding that return of the children would create a substantial risk of
detriment to their safety and well-being.
(§ 366.22, subd. (a).)
Mother raises a number of arguments,
none of which alters our conclusion.
First she contends that the court must consider her efforts and
participation in services and her compliance with case plan requirements. As evidence of her participation in services
and efforts to overcome the problem that led to removal of the children, she
cites the Department’s initial 18-month review report, which stated that, “but
for lack of housing [mother] does not pose significant risk of harm to the
children.†Thereafter, mother found
housing, and the Department recommended that the children be returned to
her. The social worker testified that
she was not concerned about mother’s ability to maintain the new home or remain
in it because she was working full-time, had a vehicle, and could make
alternative arrangements for the children’s transportation. In the social worker’s opinion, mother
completed all of her case plan requirements, which addressed any safety
concerns about the children being back in her care. In addition, mother notes that she completed
an AOD assessment and a mental health assessment, both of which determined that
she did not meet the standard for treatment.
Mother is correct that the social
worker and the Department concluded that return of the children would not pose
a significant risk of detriment.
However, the evidence favorable to mother’s position does not assist her
in meeting her burden on appeal.
Next, mother addresses the substance
abuse issue. Regarding the request that
she submit to a hair follicle test, mother objects that the request came from
minor’s counsel during the contested 18-month review, not from the court or the
Department. She also appears to argue
that a hair follicle test was untimely or otherwise inappropriate, although we
are not at all sure we understand the argument.
She attempts to rely on Jennifer
A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) to support her contention that no substantial evidence
supports a finding that returning the children to her would create a
substantial risk of detriment, but that reliance is misplaced. In Jennifer
A., the children were removed from the mother because she left them alone
in a motel room when she went to work. (
petition as a reason for removal, but the mother admitted that she occasionally
smoked marijuana, tested positive for marijuana twice, and missed approximately
nine out of 95 drug tests. (
the mother’s failure to protect her children had long been resolved, according
to the appellate court. (
her lapse of judgment that led to the detention of her children. (Id.
at p. 1327.) The court observed that the
circumstances in Jennifer A. were
“strikingly different†from the usual dependency case, and concluded the
evidence did not support the finding that returning the children to their
mother would create a substantial risk of detriment. (Id.
at pp. 1326-1327, 1345-1346.) In
contrast, here, suspected substance abuse has been an issue in this case from
the beginning as a possible cause of the foul conditions of the home; mother’s
positive drug tests are for methamphetamines; she denies any drug use
whatsoever; and she has refused to drug test and/or made excuses in order to
avoid it since November 2011.
Mother also points out that the
social worker testified that, in her opinion, returning the children to mother
would not place them at significant risk of harm. She further testified that her recommendation
would be unchanged even if mother had submitted to the hair follicle test and
tested positive, and that any substance abuse concerns could be adequately
addressed in a family maintenance plan under court supervision. Mother reiterates her explanation for failing
to submit to the hair follicle test.
However, the trial court was not required to accept the social worker’s
tests and failing to test.
We find no error. The juvenile court’s determination that
return of the children to mother would create a substantial risk of detriment
is supported by substantial evidence.
B. Visitation
At the conclusion of the 18-month
review hearing, the court ordered an updated case plan from the Department and
continued the matter for two weeks. The
court also issued a temporary order that, in the interim two weeks, “visitation
shall be four hours per week, supervised.
The time, place and manner to be determined by the department. And, again, that will be reviewed without
prejudice in two weeks.†The court found
that supervision was necessary “because unsupervised visitation would be
detrimental for the children for the reasons I’ve stated on the record†for not
returning the children to mother’s custody.
Mother contends the juvenile court
abused its discretion in reducing her visitation without evidence of detriment
to the children. She argues there was no
evidence that unsupervised visits were detrimental to the children, as found by
the court, and that this sua sponte change in visitation was impermissible and
unsupported by any evidence. On the
contrary, according to mother, visitation is beneficial to the children. She has a “loving, affectionate, and
appropriate relationship†with them, and she has “regularly and consistently
visited†with them.
“There is no question but that the
power to regulate visitation between minors determined to be dependent children
(Welf. & Inst. Code, § 300 et seq.) and their parents rests in the
judiciary. The judicial power in this
state is vested in the courts. (Cal.
Const., art. VI, § 1.) ‘ “The
judicial function is to ‘declare the law and define the rights of the parties
under it’ [Citation.]†’
. . . and ‘to make binding orders or judgments.’ (People
v. Bird (1931) 212 Cal. 632, 640-641.) . . . [¶] Thus,
the court must define the rights of the parties to visitation. The definition of such a right necessarily
involves a balancing of the interests of the parent in visitation with the best
interests of the child. In balancing
these interests, the court in the exercise of its judicial discretion should
determine whether there should be any right to visitation and, if so, the
frequency and length of visitation. The
court may, of course, impose any other conditions or requirements to further
define the right to visitation in light of the particular circumstances of the
case before it.†(In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757.) “No visitation order shall jeopardize the
safety of the child. . . .â€
(§ 362.1, subd. (a)(1)(B).)
Mother clearly loves her children
and has a close and loving relationship with them. However, the evidence detailed above,
particularly (but not limited to) mother’s troubling refusal to drug test and
to straighten out the status of her driver’s license, convinces us that
requiring visits to be supervised, pending further review by the juvenile
court, was reasonable and not an abuse of discretion.
IV. DISPOSITION
The petition is denied. The order to show cause is hereby
discharged. Our decision is final as to
this court immediately. (Cal. Rules of
Court, rules 8.452(i), 8.490(b)(3).)
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
All further unspecified statutory references are to the Welfare and
Institutions Code.
The alleged fathers of the two children are not parties to this proceeding.
