Kim W. v. Super. Ct.

Filed 10/16/07 Kim W. v. Super. Ct. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Jahiem J., born in October 2003, was made a dependent of the Contra Costa County Juvenile Court in February 2006. (Welf. & Inst. Code,  300.)^[1]Pursuant to rule 8.452 of the California Rules of Court, his mother Kim W. (Mother) has filed a petition for extraordinary writ review of an order terminating reunification services and setting a hearing to select a permanent plan pursuant to section 366.26. Among her contentions are that there was insufficient evidence to support the juvenile courts finding that return of Jahiem would create a substantial risk of detriment to his well-being and that the court abused its discretion in finding that the Contra Costa Bureau of Children and Family Services (Bureau) provided reasonable reunification services. We reject her contentions and deny the petition.

Background

We set forth the factual background most relevant to this writ petition.^[2]

In October 2005, when Jahiem was about two years old, the Bureau filed a petition seeking to have him made a dependent of the juvenile court pursuant to section 300, subdivision (b). The Bureaus jurisdictional report stated that in September 2005 Mother had been arrested for possession of suspected crack cocaine and that on another occasion a police officer found in her possession a pipe used for smoking crack cocaine. The report also stated that dependency petitions had been filed and sustained with regard to Mothers five other children.^[3]

In November 2005, following Mothers no contest plea, the court sustained an allegation in the petition that Mother has a substance abuse problem that impairs her ability to provide regular care and supervision of Jahiem. In February 2006, the court adjudged Jahiem a dependent of the court. In light of Mothers failure to unify with her five other children and in light of the indications that Mother has had a substance abuse problem since the 1980s, the Bureau recommended that Mother be denied reunification services. The juvenile court rejected that recommendation and ordered that she be provided services. Among the requirements of the case plan were that Mother complete an inpatient substance abuse treatment program and that she refrain from using drugs.

The Bureaus May 2006 six-month review report indicated that Mother was doing well in a residential treatment program. However, the report cautioned that [i]t remains to be seen whether she will be able to continue this success once she has been discharged from Magnolia Center and is faced with the difficulties of maintaining a home, working and raising children. It should be noted that [Mother] already successfully completed this treatment program in April 2004 but was not able to sustain her recovery, which led to the current intervention.

Mother completed the residential treatment program, but in September 2006 she twice tested positive for marijuana. Mother denied using marijuana. The juvenile court ordered Mother to enroll in an outpatient substance abuse treatment program. The Bureaus December 2006 twelve-month review report stated that other than the positive drug tests, Mother was making progress, particularly in relation to her parenting of Jahiem. The report again cautioned that Mother has yet to demonstrate that she is able to maintain her recovery outside the confines of a residential treatment program.

In January 2007 Mother tested positive for cocaine and in February 2007 she tested positive for marijuana. The results were reconfirmed with a second, more precise test. In March 2007 she was terminated from the Terra Firma outpatient drug treatment program. The program offered to re-enroll her if she admitted to the drug use, but she refused to do so. After the positive drug tests, the Bureau stopped permitting unsupervised visits, which had gradually increased in frequency to three consecutive nights.

The Bureaus March 2007 eighteen-month review report recommended that the juvenile court terminate family reunification services and set a section 366.26 hearing. The report acknowledged that Mother had improved many aspects of her compliance with her court-ordered case plan, such as therapy and visitation. However, the accomplishments were overshadowed by the positive drug tests. The report stated, Given her lengthy history of substance abuse and repeated relapses, [Mother] has not demonstrated that she is able to maintain a clean and sober lifestyle for an extended period of time. Further, mother has not addressed her relapses openly and continues to deny the veracity of the test results.

The 18-month review hearing was delayed, in part due to Mothers request for an opportunity to obtain independent testing of the samples that had tested positive in January and February. At the July 2007 hearing, Mothers counsel acknowledged that the independent tests Mother requested were performed, but she did not offer any test results into evidence.

At the hearing, a Bureau social worker testified that in October 2006 Mother tested positive for cocaine in connection with a separate dependency proceeding in Los Angeles. The test was a hair follicle test initiated by Mothers counsel; Mother did not offer the positive test result into evidence in the Los Angeles proceeding.

Mother presented testimony from several witnesses who denied seeing any indications that Mother had relapsed into drug use. The witnesses included the day care provider for her infant son, her father, and the director of the residential treatment program that Mother completed.

Following argument, the juvenile court terminated reunification services and set a section 366.26 hearing for October 26, 2007. The court found that reasonable services had been provided to Mother and that return to Mothers home would create substantial risk to Jahiems well-being.

Discussion

I.                    Substantial Risk of Detriment

Mother contends the juvenile court erred in terminating reunification services and scheduling a section 366.26 hearing. The Supreme Court explained in In re Marilyn H. (1993) 5 Cal.4th 295, 308, that at each review hearing prior to permanency planning, there is a statutory presumption that the child will be returned to parental custody. . . . At 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the childs physical or emotional well-being. (See also 366.22, subd. (a).) Generally, the maximum length of time that reunification services are provided to a parent is 18 months, after which point   [t]he overriding concern is to provide a stable, permanent home in which a child can develop a lasting emotional attachment to his or her caretakers. (In re Jasmon O. (1994) 8 Cal.4th 398, 420-421.) If the child is not returned to a parent at the 18-month permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. ( 366.22, subd. (a).)

On appeal, we determine whether substantial evidence supports the juvenile courts finding that returning Jahiem to Mothers care would create a substantial risk of detriment to his physical and/or emotional well-being. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341.) We review the record in the light most favorable to the Bureau and indulge all reasonable inferences to uphold the courts finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

In arguing that there is insufficient evidence to support the juvenile courts finding, Mother relies on the evidence that she completed or made significant progress on most of the components of her case plan, such as individual therapy and visitation with Jahiem. She points to the evidence presented at the July 2007 hearing that her interactions with Jahiem were consistently appropriate, that she took good care of Jahiems infant brother, and that she was performing well in a certificate program in chemical dependency counseling. She also emphasizes that, following the positive drug tests in early 2007, she enrolled in another outpatient substance abuse program and had no more positive tests; and witnesses at the July 2007 hearing testified that they had not observed any signs of drug use.

Nonetheless, substantial evidence supports the juvenile court orders. A critical consideration in the decision whether to continue or terminate reunification services is the progress the parent has madetowards eliminating the conditions leading to the childs placement out of the home. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) In the present case, the basis for the dependency is Mothers substance abuse. While the evidence shows that Mother is attempting to improve her life and has a good relationship with Jahiem, the juvenile court could not disregard the troubling pattern of recurrent drug use. (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398.) The court had before it positive tests in September 2006, October 2006, January 2007, and February 2007. The facts do not support Mothers argument that she suffered an isolated relapse.^[4] Moreover, Mother refused to admit her drug use, she was not forthcoming with the results of her independent drug tests, she lost custody of five other children in the dependency system, and she has been struggling with substance abuse since the 1980s. The juvenile court stated that it had concerns about Mothers credibility and that it could not ignore the positive drug tests. It was reasonable for the juvenile court to conclude that Mothers failure to resolve her drug problems showed that return of Jahiem would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being.

II.                 Reasonable Services

Mother contends the juvenile court orders should be reversed because the Bureau failed to offer reasonable services. However, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a finding at the 18-month review that reasonable services were provided. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511.)

Substantial evidence supports the juvenile court finding that reasonable services were provided. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) Reunification services should be tailored to meet the specific needs of a particular family. (Id. at p. 972.) Services will be found reasonable if the [Bureau] has 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. (Id. at pp. 972-973.) The test is not whether the services provided were the best that might be provided, but whether they were reasonable under the circumstances. (In reMisako R., supra, 2 Cal.App.4th at p. 547.)

Mothers complaint is that the Bureau failed to increase visitation to reflect the progress she made after the positive drug tests in January and February 2007. In part, the Bureau declined to increase visitation because Mother refused to acknowledge the positive drug tests.^[5]The obstacle to reunification was Mothers substance abuse. The Bureau was understandably reluctant to allow increased visitation while Mother was not being forthcoming about her drug use. It concluded that Mothers acknowledgment of her use was important to her recovery; in fact, Mother missed an opportunity to re-enroll in a program she had almost completed due to her refusal to acknowledge her use. Mother does not explain how the decrease in visitation after March 2007 interfered with her ability to overcome her substance abuse problem, which was the obstacle to reunification. (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1508, fn. 2.) The juvenile court did not err in concluding that reasonable services had been provided.^[6]

III.               Order Not to Speak to Witnesses

Finally, Mother contends that the juvenile court abused its discretion in ordering Mothers counsel not to speak with the prospective witnesses during an approximately 45-minute pause in the July 2007 hearing. The trial court explained, [W]e are in the middle of a contest, and you are going to be calling those witnesses, and information has come up. I do not want you talking to the witnesses, nor do I want [Mother] talking to the witnesses. [] . . . [] . . . I want no tainting of the evidence. Mother cites no authority supporting her argument that the order was improper where her counsel had ample opportunity to meet with the witnesses before the hearing, which was delayed more than once.

Moreover, we will not reverse unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Mother fails to explain what prejudice resulted from the order. In particular, she fails to identify any testimony that could have been presented but for the order. The reality is that testimony on the issues covered by Mothers witnesses could do little to alleviate the concerns raised by the positive drug tests. Any error was harmless.

Disposition

The writ petition is denied on the merits. (Cal. Const., art. VI,  14; Cal. Rules of Court, rule 8.452(i)(1)); Kowis v. Howard (1992) 3 Cal.4th 888.) The request for stay of

the section 366.26 hearing on October 26, 2007, is denied. This decision shall be final as to this court in five court days. (Cal. Rules of Court, rule 8.264(b).)

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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^[1]Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] The record does not include reporters transcripts of any hearings other than the last hearing on July 10, 2007.

^[3] Mother gave birth to a seventh child in February 2006. That child is not involved in the present case.

^[4]Cases cited by Mother make a distinction between a relapse and ongoing use, but they arise in the context of the decision whether to deny reunification services outright under section 361.5, subdivision (b), not in the context of the decision to set a section 366.26 hearing, after services have been provided for 18 months. (See Karen H. v. Superior Court (2001) 91 Cal.App.4th 501, 504-505; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780.)

^[5]Mother also complains in passing that the Bureau did not arrange for visits closer to her residence in Alameda County or provide her money for gas to get to the visits in Martinez. There is evidence of only one occasion on which those considerations may have interfered with Mothers ability to visit Jahiem.

^[6]Nor did the juvenile court abuse its discretion (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.) in accepting the Bureaus recommendation of one hour of visitation per month going forward. The court explained that was the minimum; it could be increased at the Bureaus discretion. The court also pointed out that Jahiem may end up being adopted and that he would need to get used to decreased contact with Mother.