M.P. v. Super. >Ct.>

















Filed 12/27/12
M.P. v. Super. Ct. CA4/3











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NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

M.P., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

G047453 (Super. Ct. Nos. DP021349, DP022042) O P I N I O N

Original
proceedings; petition for a writ of mandate to challenge an order of the
Superior Court of Orange County, Jacki C. Brown, Judge. Petition denied.

Donna
P. Chirco for Petitioner.

No
appearance for Respondent.

Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County
Counsel, for Plaintiff and Respondent.

Law
Office of Harold LaFlamme and Yana Kennedy for the Minors.

The
mother contends the juvenile court
erred when it terminated reunification
services and set the matter for a hearing under Welfare and Institutions
Code section 366.26. (All further
statutory references are to the Welfare and Institutions Code.) We find no error.

I

FACTS

On March 1, 2011, R.B., the father and M.P., the mother, were caught “on a burglary
spree,” according to the police report.
They went to three different Target stores and stole from each. The father ran from the police and was
subsequently arrested. Present with them
was three-year-old T.B. The mother was
not arrested because she was pregnant and had T.B. with her.

Eleven
months earlier, in February 2010, it was reported the parents were trying to
steal merchandise from a store while T.B. was in a stroller. In August 2010, T.B. was outside, unattended,
with a dog on a leash. When questioned,
all she responded was to say “daddy sleeping.”
Neighbors telephoned police on another occasion when then two-year-old
T.B. was walking down the street alone.
A neighbor escorted the child home and was informed by a man in the home
that he was sleeping. In October 2010,
the mother and father committed a burglary at a Costco, with T.B. in tow. Both parents were arrested and charged with href="http://www.fearnotlaw.com/">burglary and conspiracy.

The mother’s criminal
history includes 11 convictions for various crimes, primarily theft
crimes. The father has been convicted of
crimes seven times.

In March 2011, T.B. was
taken into custody and placed in a foster home.
At the time, the mother was “a fugitive running from the law.” In April T.B. was declared a dependent of the
Juvenile Court of Riverside County.

In June 2011, the mother
delivered baby boy L.B., in Garden
Grove. Within 24 hours, the
baby demonstrated difficulties. He was
hypertonic, had a high pitched cry, runny stool, vomiting, a low heart rate and
was irritable, showing classic signs of withdrawal from Benzodiazepines. The court denied the parents’ request to
release L.B. into their custody. Orange
County Social Services Agency (SSA) substantiated severe neglect of L.B. by
both parents.

The Orange County
Juvenile Court found the allegations involving neglect of L.B. to be true. The court also determined the parents’
address was in Riverside County, and ordered proceedings transferred
there. A November 17, 2011, minute order
of the Riverside Juvenile Court indicates the father was incarcerated. The juvenile court ordered proceedings transferred
to Orange County.

On February 10, 2012,
the Orange County juvenile court judge ordered visitation at any Orange County
jail facility for the father to visit with T.B and L.B. On May 4, 2012, both parents were arrested. When the social worker visited the mother in
jail on May 8, the mother admitted she was taking Vicodin and oxycodone. At the Orange County men’s jail, the father
said his arrest was a mistake when the social worker visited him there. On August 9, 2012, the juvenile court ordered
jail visitation for the mother to visit with T.B. and L.B.

A September 17, 2012
addendum report from SSA states: “The
mother, who continues to be incarcerated, continues to show positive effort in
maintaining her sobriety. She has completed
several classes and continues to take additional ones upon availability. As of this writing she is to have a phone
interview with Heritage House so that hopefully upon release she can
immediately enter the program. If she is
able to transfer immediately into an in-treatment facility, such as Heritage
House, it is hoped that the program will help her to maintain her sobriety, and
that she would focus on the fact that she has to continue working towards
providing and maintaining a safe and stable environment for her children.”

At the combined 12-month
review hearing for T.B. and the six-month review hearing for L.B., the court
described the main controversy was whether or not the court would continue href="http://www.mcmillanlaw.com/">reunification services. The father’s lawyer argued he should be given
more services because “he has been in custody since March of last year until
the end of May . . . of this year. . . . I’m going to present evidence that he has,
through the social worker, completed a series of programs while he was in
custody including parenting education.”
The attorney for the children requested that a permanency hearing be set
for both children, pointing out to the court the parents had both been incarcerated,
and “testing positive” when they were out of custody.

The juvenile court heard
the testimony of the social worker, and the mother. The social worker testified the mother had
over 18 months of services on T.B.’s case and over a year of services on L.B.’s
case. She said the father admitted to
her earlier that day that he was taking oxycodone, Xanax and Norco.

The following questions
and answers were asked by mother’s counsel and answered by the social worker:

“Q: Okay.
And have you discussed with the mother what she’ll do when she’s
released from custody?

“A: Yes.

“Q: What have you discussed with her?

“A: She will either go to Heritage House. She told me of a particular title, I don’t
recall, that will allow her to go there, and she won’t have to pay. [¶] And if that program doesn’t work or if
and when she starts the program, I would rerefer her to prototypes because I’m
familiar with that program, and I think she would do well.

“Q: So you discussed with her going into a
treatment facility upon release?

“A. Correct.

“Q: And does that seem like something that mother
is in agreement with doing?

“A: Yes.

“Q: And do you think that that — those additional
services would aid mother in addressing the problems which led to the initial
removal of the children?

“A: Yes.

[¶] . . .[¶]

“Q: With the programs that mother has completed,
though, and if she does follow through with what you’ve discussed with her of
going into a treatment facility, did you think that she could easily have the
kids returned to her care in the next six months?

“A: Yes.”

At the outset of setting
forth its findings, the juvenile court stated:
“I will note that the tender age of both children made it imperative
that substantive progress had to be made by both parents in a consistent fashion
in order for the children to be able to be returned.” The court found: “I do find that by a preponderance of the
evidence the showing that a substantial risk of detriment has been made as to
both children.”

Regarding the mother,
the juvenile court found her “progress has been minimal noting however she has
made an awful lot of efforts in the last two months; but that is not sufficient
in the court’s mind to note the moderate, or substantial progress overall in
the last six months.” The court also stated: “I will note that the mother had failed to
obey court orders, failed to stay free of drugs, failed to test by the social
worker, failed to accept responsibility in terms of her very most recent
incarceration. [¶] And even though she
had represented back in January 2012 in the case plan that she would do
whatever she needed to do to get her children returned to her she did nothing
to progress towards that goal until she’s back in custody in June 2012. [¶] Even though she was out of custody from
January through May, she failed to ever test; which was an absolute
prerequisite to any substantive progress towards controlling and eliminating
the drug abuse in her life. [¶] She
failed to enroll in the perinatal program as ordered by the social worker. And even though she had participated in the
Mariposa Women’s Center, although she ended up being required to leave it, she
failed to enroll in the perinatal program; which is the program that her social
worker pointed out to her which then contained all of the ingredients required
under the case plan. [¶] In addition,
she has no concrete release date at the present time. And she’s presented herself as if she has a
potential release date from Orange County jail in October; however she has two
other holds. Neither one of which anyone
know what is going to happen with.”

Regarding the father,
the court stated: “I will find also that
although the social worker based upon her examination of the case found that
there have been substantive progress made by the father in court ordered
treatment, I do not find the actual facts support that conclusion.” Later the court said as to the father: “I will find that he has made statements of a
nature that would indicate a real sincere desire for the return of his children;
however he has failed to do what he needed to do in order to meet that. [¶] He has failed to ever test. . . . He’s failed to inform the social worker of
many of the points that were specifically delineated in the case plan that he
was required to keep the social worker aware and informed. [¶] He failed to until just the last
appearance to inform the social worker that he was taking prescriptive
drugs. Then he failed to provide any
verifications except as to a prescription for one. [¶] More importantly, he has never provided
medical verification for the need for those prescriptive drugs, or even had a
condition, or illness for what it was that had prompted the medical attention
for those drugs. [¶] He has made
indication through repeatedly acts to the social worker about his
residence. And even though the social
worker gave him referrals, based upon his professed desire to move to Orange
County he never followed through on any of them. [¶] When . . . the social worker ordered him
to enroll in one of four programs he failed to do that. . . . He was terminated from therapy due to his
un-excused absences. [¶] And both
parents have failed to regularly and consistently report to the social
worker. The father reported, but
apparently when he chose to report; not when the social worker directed him to
report. [¶] He got terminated from
therapy due to his own absences. And has
never tested either with the social worker, or with the programs that the
social worker told him to do testing with.
[¶] And he has never provided proof of his 12-step program as ordered by
the social worker.”

On September 26, 2012,
the juvenile court found “neither parent has substantially complied with the
directors of the case plans” and “by a preponderance of the evidence I find
that any return would constitute a substantial risk of detriment to the
children.” The juvenile court also
ordered that a hearing under section 366.26 be held on January 15, 2013.

II

DISCUSSION

The mother
contends the juvenile court erred in terminating reunification services. The court reviews a denial of continued href="http://www.fearnotlaw.com/">reunification services for substantial
evidence. (In re Zacharia D. (1993) 6 Cal.4th 435, 456.)

“‘The dependency scheme sets up
three distinct periods and three corresponding distinct escalating standards
for the provision of reunification services to parents of children [or a
sibling group containing a child] under the age of three. During the first period, which runs from
roughly the jurisdictional hearing (§ 355) to the six-month review hearing (§
366.21, subd. (e)), services are afforded essentially as a matter of right (§
361.5, subd. (a)) . . . [with a few exceptions not applicable in
this case]. (name="SDU_1058">§
361.5, subd. (b).) During the second
period, which runs from the six-month review hearing to the 12-month review
hearing (§ 366.21, subd. (f)), a heightened showing is required to continue
services. So long as reasonable services
have in fact been provided, the juvenile court must find “a substantial
probability” that the child may be safely returned to the parent within six
months in order to continue services. (§
366.21, subd. (e).) During the final
period, which runs from the 12-month review hearing to the 18-month review
hearing (§ 366.22), services are available only if the juvenile court finds
specifically that the parent has “consistently and regularly contacted and
visited with the child,” made “significant progress” on the problems that led
to removal, and “demonstrated the capacity and ability both to complete the
objectives of his or her treatment plan and to provide for the child’s safety,
protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).)’ [Citation.]”
(A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1057-1058.)

“(1)
Family reunification services, when provided, shall be provided as
follows: [¶]name=IE8003942C9C311E190CDB0B05C0A7142>name=IE7A93FA9C9C311E190CDB0B05C0A7142> (A)
Except as otherwise provided in subparagraph (C), for a child who, on the date
of initial removal from the physical
custody of his or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered foster care as
defined in Section 361.49, unless the child is returned to the home of the
parent or guardian. [¶] name=IE8003943C9C311E190CDB0B05C0A7142>name=IE7A93FAAC9C311E190CDB0B05C0A7142>(B)
For a child who, on the date of initial removal from the physical custody of
his or her parent or guardian, was under three years of age, court-ordered
services shall be provided for a period of six months from the dispositional
hearing as provided in subdivision (e) of Section 366.21, but no longer than 12
months from the date the child entered foster care as defined in Section 361.49
unless the child is returned to the home of the parent or guardian. [¶] name=IE8006050C9C311E190CDB0B05C0A7142>name=IE7A93FABC9C311E190CDB0B05C0A7142>(C)
For the purpose of placing and maintaining a sibling group together in a
permanent home should reunification efforts fail, for a child in a sibling
group whose members were removed from parental custody at the same time, and in
which one member of the sibling group was under three years of age on the date
of initial removal from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be limited as
set forth in subparagraph (B). For the purposes of this paragraph, ‘a sibling
group’ shall mean two or more children who are related to each other as full or
half siblings.” (§ 361.5, subd. (a)(1).)

“At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the child
entered foster care . . . the court shall order the return of the child to the
physical custody of his or her parent . . . unless the court finds, by a preponderance
of the evidence, that the return of the child to his or her parent . . . 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. At the hearing, the court
shall consider the criminal history . . . of the parent . . . subsequent to the
child’s removal to the extent that the criminal record is substantially related
to the welfare of the child or the parent’s . . . ability to exercise custody
and control regarding his or her child . . . .
The failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall be prima
facie evidence that return would be detrimental. In making its determination, the court shall
review and consider the social worker’s report and recommendations and the
report and recommendations of any child advocate . . . and shall consider the
efforts or progress, or both, demonstrated by the parent or legal guardian and
the extent to which he or she availed himself or herself to services provided,
taking into account the particular barriers to an incarcerated or
institutionalized parent or legal guardian’s access to those court-mandated
services and ability to maintain contact with his or her child. [¶] . . . [¶] name=IE8180702C9C311E190CDB0B05C0A7142>If the child was under three years
of age on the date of the initial removal . . . and the court finds by clear
and convincing evidence that the parent failed to participate regularly and
make substantive progress in a court-ordered treatment plan, the court may
schedule a hearing pursuant to Section 366.26 within
120 days.” (§ 366.21, subd. (e).)

At
the 12-month hearing, “the court shall order the return of the child to the
physical custody of his or her parent . . . unless the court finds, by a
preponderance of the evidence, that the return of the child . . . 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. . . . The failure of the parent . . . to
participate regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f).)

Here T.B. was taken
under protection in early March 2011 and the juvenile court ended reunification
services in late September 2012, a period of almost 19 months, and mother
received services for over 18 months on T.B.’s case. Services regarding L.B. were ended 15 months
following the time he was taken into protective custody after the mother
received more than 12 months of services on his case. The court found mother did not substantially
comply with court-ordered treatment programs and that return of T.B. and L.B.
to her would constitute a substantial risk of detriment to the children.

The juvenile court
stated it did consider the barriers faced by parents who are in custody. It noted that whatever efforts were made by
both parents, were actually made while they were in custody in this
instance. With regard to considering the
social worker’s recommendation, the juvenile court disagreed with mother’s
counsel’s characterization that “the social worker’s testimony show[s] that
mother has made substantial progress” and that mother should have the children
returned within six months. Instead of
adopting that characterization, the court specifically found the mother had made
only minimal progress overall.

We note the court
disagreed with the social worker’s recommendation, but that county counsel
agrees substantial evidence supports the juvenile court’s findings. We also note that numerous times during the
social worker’s testimony, she responded in ways that could have revealed an
unfamiliarity with the specifics of this case or a general hesitancy to commit
to details with such responses as “I believe so,” “I’m not sure,” “I don’t
recall,” “I don’t believe so,” and “I don’t think so.” When asked about a particular program, she
was unable to explain what it was, and said “I think that’s drug
counseling.” We are not going to engage
in weighing the evidence ourselves and instead defer to the juvenile court to
decide the weight and credibility to be given to a witness’s testimony. (In re
Lana S. (2012) 207 Cal.App.4th 94, 103.)


Under the circumstances
we find in this record, we find no error.
We conclude substantial evidence supports the juvenile court’s orders.







III

DISPOSITION

The
petition for writ of mandate is denied.







MOORE,
J.



WE CONCUR:







O’LEARY, P. J.







BEDSWORTH, J.