Maria T. v. Superior Court

Filed 8/21/08 Maria T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Charlotte A. Wittig, Judge.

Maria T., in pro per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel and Amy Marie Costa, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Cornell, Acting P.J., Gomes, J., and Kane, J.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and her husband, T.J., have four children, D., T., J., and X., the subjects of this writ petition.In March 2006, the Alameda County juvenile court exercised dependency jurisdiction over then 13-year-old D., 8-year-old T. and 6-year-old J. because petitioner was unable to protect them from T.J. who is mentally ill and violent. Petitioner and T.J. were provided court-ordered reunification services. Petitioner complied but T.J. did not. In addition, T.J. did not contact the Alameda County social services agency and his whereabouts remained unknown until July 2007 when he was located incarcerated in an out-of-state federal institution. At the 12-month review hearing in February 2007, the Alameda County juvenile court terminated T.J.s reunification services. By this time, petitioner had given birth to X. who was allowed to remain in her custody under voluntary family maintenance.

In March 2007, the case as to D., T., and J. was transferred to Tulare County where the children were placed with their paternal grandmother. While there, the relationship between petitioner and her daughter D. became increasingly strained and physical. In July 2007, petitioner sustained bleeding injuries to her chest and hands after an argument escalated to physical violence. The argument began when petitioner asked D. to hold X. and D. refused. Petitioner placed X. on D.s lap anyway and D. pushed X. off of her lap, causing him to land on the floor. Petitioner slapped D. and then slapped her again when D. asked her not to hit her. In light of petitioners compliance and despite any discord, the Tulare County juvenile court (juvenile court) returned D., T., and J. to petitioners custody under family maintenance at the 18-month review hearing in August 2007 and set a review hearing for January 2008.

In the intervening months, D. became increasingly defiant and refused to go to school. At the January review hearing, the court ordered the Tulare County social services agency (agency) to develop a plan addressing D.s behavior and set a review hearing for March. The court also ordered D. to undergo a psychological evaluation, which she did. Among the recommendations made by the examining psychologist were that D. participate in individual and family therapy and that petitioner undergo a psychological evaluation and participate in parenting classes designed for parents with children with behavioral problems. In February 2008, D. began weekly therapy.

At the March 2008 family maintenance review hearing, the juvenile court adopted the psychologists recommendations as part of petitioner and D.s case plans and ordered petitioner to complete a substance abuse evaluation and submit to alcohol and drug testing after she disclosed several incidents of intoxication. The court also set a review hearing for August 2008.

Meanwhile, in April 2008, the juvenile court took the children into protective custody and filed an original petition ( 300) as to then one-year-old X. and a supplemental petition ( 387) as to D., T., and J., alleging petitioner struck D. in the face and kicked her, had an automobile accident while intoxicated, leaving the children alone unsupervised overnight, and failed to participate in court-ordered drug testing and treatment. D., T., and J. were placed together in foster care and X. was placed with his paternal grandmother.

In May 2008, the juvenile court convened a combined contested jurisdictional/dispositional hearing on the original and supplemental petitions. Petitioner made an offer of proof, accepted by the parties, that prior to her automobile accident, she was participating in counseling with D. and that she would participate in any services required to reunify with her children. In addition, she had an appointment for a psychological evaluation for the week following the hearing and would be attending her first parenting class the following day. Following argument, the court sustained the petitions as to all four children and proceeded to the dispositional phase of the hearing.

With respect to disposition, the agency recommended the court terminate petitioners reunification services as to D., T. and J. because petitioner had received 27 months of services, which exceeded the 18-month statutory limitation on services. As to X., the agency recommended the court deny petitioner reunification services because she failed to reunify with D., T. and J. and because she resisted substance abuse treatment.

Petitioners attorney argued the agencys recommendation to terminate petitioners services was a change in position and appeared to be motivated merely by her driving under the influence. With respect to denial of services as to X., petitioners attorney argued there was insufficient evidence of substance abuse to warrant denying her services. Following argument, the court continued the hearing for its ruling. At that hearing, the court found petitioner was provided reasonable services as to D., T., and J. and ordered them terminated. The court also denied petitioner reunification services as to X. and set a hearing to consider a permanent plan of adoption for all four children. This petition ensued.

DISCUSSION

Petitioner seeks return of the children to her custody or further services. She claims the court erred in concluding she engaged in domestic violence with D. as there are no police reports or school reports to support such a finding. Additionally, she argues the 18-month limitation on reunification services does not apply to her case because the time she had the children in her custody under family maintenance is not included in that 18 months. Further, she argues, D. returned home an angry, abusive, and violent teenager because the agency did not provide her adequate counseling. Therefore, she claims, the agency failed her children and she should not be penalized for the agencys failing. We disagree.

In this case, the juvenile court issued its orders and findings at a dispositional hearing as to X. and an 18-month review hearing as to D., T., and J. In deciding whether to return a child to parental custody at a dispositional hearing, the juvenile court must determine by clear and convincing evidence whether returning the child would expose the child to a substantial risk of danger. ( 361, subd. (c)(1).) The standard the juvenile court employs at the review hearings is less stringent. The court need only find by a preponderance of the evidence that returning the child would expose the child to a substantial risk of detriment. ( 366.22, subd, (a).) Under either standard, the fundamental question is whether the parent presents a sufficient threat of harm to the child to warrant out-of-home placement. Under either standard, the circumstances in this case support the juvenile courts decision not to return petitioners children to her custody. Petitioner was engaging in domestic violence with D. and, contrary to her assertion, there was more than sufficient evidence that this was occurring. The agency documented the reports of physical violence between petitioner and D. in its periodic reports for the juvenile court, which were admitted into evidence without objection. In addition, petitioner had a substance abuse problem that was spiraling out of control. As a result, she was neglecting and endangering her children. Petitioner attempts to place the blame on D.s anger and belligerence but takes no responsibility for her own actions or her refusal to participate in services so as to better parent and protect her children.

With respect to services, the juvenile court denied petitioner services as to X. pursuant to section 361.5, subdivision (b)(10) and terminated her services as to D., T. and J. pursuant to section 366.22, subdivision (a) because petitioner exceeded the 18-month statutory limitation. Since petitioners argument focuses on the termination of services rather than the denial of services,^[2]we will restrict our discussion to the courts termination of services as to D., T., and J.

The Legislature contemplated a maximum reunification period of 18 months beginning from the date the child was first removed from the physical custody of his or her parent. ( 361.5, subd. (a)(3), 366.22, subd. (a).) The fact that a parent had custody of the child during any part of the 18 months following the childs physical removal does not stop the limitation period from continuing to run. (In re N.M. (2003) 108 Cal.App.4th 845, 854.) In this case, petitioner received approximately 27 months of reunification services calculated from D., T., and J.s physical removal in March 2006 until the courts order terminating services in May 2008. Therefore, she received an excess of the 18 months of services provided by statute.

Further, where as here, if the juvenile court can not safely return the children to parental custody after 18 months of services, it has no choice but to terminate reunification services unless the court finds reasonable services were not provided or continuing services would serve the childs best interest. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) To the extent petitioners contention D. was not provided adequate counseling is a challenge to the reasonableness of services, she fails to show how the services were deficient and how different services would have affected the outcome in this case. Consequently, petitioner fails to mount a meritorious challenge to the juvenile courts reasonable services finding. Further, she neither argued at the 18-month review hearing nor on this writ petition that continuing services would serve D., T., and J.s best interests. Therefore, there is no reason for this court to overturn the juvenile courts findings and orders resulting in termination of reunification services.

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] Subdivision (b)(10) allows the juvenile court to deny reunification services to a parent whose child has been removed (here X.), who failed to reunify with the siblings of the child (D., T. and J.) and who failed to make subsequent reasonable efforts to resolve the problem that necessitated the removal of the siblings (domestic violence).