J.A. v. Superior Court

Filed 12/4/09 J.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Peter A. Warmerdam, Judge.

J.A., in pro. per., for Petitioner.

No appearance for Respondent.

Theresa A. Goldner, County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

___________________

*Before Vartabedian, A.P.J., Levy, J., and Kane, J.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter, C.A., and sons, R.N. and J.A. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In the early morning hours of June 2008, police officers responded to a report of a baby not breathing at the home of petitioners mother, M.V. They found emergency medical personnel attempting to resuscitate petitioners then two-year-old daughter, R.A. R.A. was transported to the hospital where she died. The cause of death was homicide as a result of blunt force trauma.

During the investigation of M.V.s home, the police discovered that approximately 14 people lived in the home including petitioners three other children, then six-year-old R.N., four-year-old C.A., and one-year-old J.A. The police found the home not only unsafe but also unsanitary and took the children into protective custody.

Petitioner explained that she left the children in M.V.s care in November 2007 because she was losing her home and had no place to stay. She said the police were going to take the children into protective custody because her house was dirty but agreed to let M.V. take them. Petitioners plan was to leave the children with M.V. for two years, believing it would take her that long to establish a stable life. She denied current drug use, stating she had not used drugs for a year.

The Kern County Department of Human Services (department) filed a dependency petition on the childrens behalf alleging petitioner placed the children at risk of harm by providing them an unsafe and unsanitary home in November 2007 and by subsequently placing them in the home of M.V. which was also unsafe and unsanitary. The petition further alleged petitioner knew M.V. was not an appropriate caregiver because petitioner was a dependent of the court on two separate occasions. In addition, it alleged there was an active warrant for petitioners arrest because she failed to appear before the court on a December 2007 controlled substance violation.

The juvenile court ordered the children detained and set a contested jurisdictional hearing for September 2008. The hearing was continued and conducted in October 2008. Meanwhile, petitioner surrendered herself on the outstanding warrant and served a 180-day sentence.

In October 2008, at the conclusion of the contested jurisdictional hearing, the juvenile court found the allegations in the dependency petition true. At the dispositional hearing, the following month, the court ordered the children removed from parental custody and ordered services for petitioner and the fathers of the children. Petitioners services plan required her to participate in counseling for child neglect, parenting and substance abuse, and submit to random drug testing.

In March 2009, the juvenile court conducted the six-month review hearing. By this time, petitioner had completed a parenting course, was doing well in a substance abuse program, and testing negative for drugs. In addition, she was visiting the children. In light of petitioners efforts, the court continued services to the 12-month review hearing.

In the months from March 2009 through and including June 2009, petitioner was asked to drug test on six occasions. She failed to test twice, tested positive for methamphetamine in April, and tested negative in March and twice in June. Petitioners substance abuse counselor reported that petitioner was struggling with her recovery and poorly attending her group meetings. In addition, she reported petitioner tested positive for methamphetamine in June 2009. In June 2009, while discussing her case plan with her caseworker, petitioner admitted she had been slacking off because she thought her efforts would be futile. In its report for the 12-month review hearing, the department recommended the court terminate petitioners reunification services.

In August 2009, at a contested 12-month review hearing, petitioner testified she attended substance abuse classes every day, which would allow her to complete the program before October 2009. She said she had seven more classes to attend. She also testified she drug tested negative for the department twice each in the months of June, July, and August for a total of six times. The social worker informed the court there was no record of petitioner having tested in July but that the June and August drug tests were negative.

At the conclusion of the hearing, the juvenile court terminated reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.^[2]

DISCUSSION

Petitioner contends she had almost completed her classes. Therefore, she argues, the juvenile court should have given her more time to complete them. Liberally construed, petitioners contention is that the juvenile court erred in terminating reunification services because there was a substantial probability the children could be returned to her custody by the 18-month review hearing.

We review the juvenile courts order terminating reunification services for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the courts finding. (In reBrison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On review of the record as summarized above, we conclude substantial evidence supports the juvenile courts order.

Under the statutory scheme, the juvenile court had discretion to extend services up to December 2009, which marks 18 months from June 2008, the date the children were removed from petitioners physical custody only if it found a substantial probability that the children would be returned to petitioners custody and safely maintained in her home within the extended period of time, or that reasonable services were not provided to her. ( 361.5, subd. (a); 366.21, subd. (g)(1).) Since petitioner does not challenge the reasonableness of services provided, we are concerned only with the court's finding there was not a substantial probability of return within the extended time period.

In assessing whether there is a substantial probability of return, the juvenile court must consider the parents capacity to meet the objectives of the case plan and provide a safe home for the child. ( 366.21, subd. (g)(1)(C).) On this record, the court had cause to question petitioners ability to assume custody of and safely parent the children after another four months of services. In June 2009, after 12 months of services, petitioner tested positive for methamphetamine for the second time. In July, she was still not regularly participating in substance abuse counseling. Her failure to progress in that year coupled with a history of instability and neglect posed a poor prognosis for successful reunification in the near future. Thus, we concur with the juvenile courts conclusion there was not a substantial probability of return and conclude it did not err.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Neither of the fathers filed a writ petition.