Nicole M. v. Super. Ct.

Filed 6/10/08 Nicole M. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

David Goldstein for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Contending that the juvenile court abused its discretion in refusing to extend reunification services, Nicole M. (mother) seeks an extraordinary writ to compel the lower court to vacate its order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.^[1] We conclude that the juvenile court did not abuse its discretion and accordingly deny the petition.

FACTS

On January 26, 2007, a petition was filed on behalf of Taylor C. (born in May 2006), alleging she was a dependent child within section 300, subdivision (b), because of abuse of controlled substances by both parents, domestic violence, mothers transient lifestyle, the parents criminal history, and the fact that while under the influence of a controlled substance, mother drove a vehicle containing the child.

The Department of Public Social Services (department) was notified on January 24, 2004, when mother and her boyfriend, Cody MacArthur, appeared to be under the influence of a controlled substance when they picked up vouchers for housing. A social worker interviewed the couple at the motel where they had been staying. Mother admitted she had used methamphetamine recently and that she had been homeless for three months. She also admitted that in 2003 she was placed on three years probation for use of methamphetamine. The social worker administered in-field drug tests to mother and MacArthur that came back positive for methamphetamine.

Taylors father arrived at the motel on January 24, 2007, to pick Taylor up for a weekend visit. The father agreed to talk to the social worker. He also admitted using methamphetamine but claimed he stopped three months ago in order to get clean for his daughter. A sheriffs deputy advised the social worker that the parents, MacArthur, and fathers girlfriend all appeared to be under the influence of a controlled substance at that time, but he did not make any arrests.^[2]

Taylor was taken into protective custody and was taken to the emergency room for treatment of a large boil on her right thigh.

Taylor was placed in the home of maternal step great-grandparents. At the time of the jurisdictional hearing, it was reported that mother was actively participating in drug treatment, random drug testing, individual therapy, and group therapy.

Mother appeared at the jurisdictional hearing held on February 21, 2007; an amended petition was filed and mother waived her right to trial. A disposition hearing was calendared for March 28, 2007. The court authorized relatives to supervise mothers visits in Orange County.

In an addendum report submitted March 26, 2007, the social worker reported that mother had enrolled and was attending a substance abuse treatment program, continued to participate in both individual and group therapy, and submitted to random drug testing. It appeared that she was demonstrating an ability and willingness to remain sober. At the dispositional hearing on March 28, 2007, the juvenile court authorized placement of Taylor with mother as well as unsupervised visits for her.

By the time of the six-month status review, Taylor had been placed in mothers care, although she had been voluntarily placed with maternal relatives following a domestic violence incident between mother and MacArthur, whom mother had married. Mother minimized the incident, but the department requested MacArthur relocate until he could demonstrate positive participation in a domestic violence treatment program. The social worker recommended that mothers substance abuse treatment be extended an additional two months and that family maintenance services be extended to her and McArthur for six additional months.

At the contested review hearing on November 5, 2007, the juvenile court ordered that family maintenance services be continued on condition mother remained enrolled in a domestic violence program.

When mother tested positive for methamphetamines, the department filed a supplemental detention report. Taylor was detained on January 28, 2008, and once again placed with maternal relatives. The court ordered reunification services to the parents and set a jurisdictional hearing for February 21, 2008.

In the jurisdictional report, the social worker recommended termination of reunification services in light of the parents long history of substance abuse, domestic violence, and child neglect.

This continued to be the recommendation in an addendum report submitted after continuance of the February 21, 2008, hearing. The social worker reported mother had entered a residential treatment program on February 6, 2008. A staff member reported that mother was friendly with her peers and excellent when interacting with Taylor. She was attending 12-step meetings and group therapy. The social worker concluded, however, that mother had not benefitted from prior services nor resolved the issues that resulted in the dependency proceedings. This conclusion was based on mothers refusal to accept responsibility and poor judgment. Mother blamed her drug relapse on the departments insistence that MacArthur move out of the home. She continued to minimize the risk to her child posed by domestic violence or her continued drug use.

At the hearing on March 20, 2008, the juvenile court found the allegations of the supplemental petition true, terminated reunification services and set a selection and implemental hearing. It noted that mother had had extended family reunification and family maintenance services for 13 months and that there had been ups and downs. At this point, the Court has to look at what is in the best interest of Taylor and where Taylor can be most stable and provided for. I note that the mother has made some attempt, most recently, to enter into [a residential treatment] program a little over a month ago. At this point, that may just not be enough. Were looking at a downward roller coaster ride. It added that there was a possibility that mothers attorney could file a petition for change of circumstances if she continued her recent progress.

DISCUSSION

Mother contends that the juvenile court abused its discretion in not extending reunification services for an additional four months to the 18-month hearing because of her most recent efforts. Although she did suffer a relapse in January 2008, she entered a residential treatment program and was making progress. She was scheduled to complete the program in May, and she contends that would allow an additional two months of time to monitor her progress and her participation in after-care.

We find that substantial evidence does not support a finding that Taylor could be safely returned to mother even if she had been given four more months of services. Rather, the record clearly supports the lower courts decision not to extend services. Section 366.21, subdivision (g)(1), provides that the court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.

The juvenile court must consider the progress the parent has made toward eliminating the conditions leading to the childs placement out of the home. In making its determination, the juvenile court must weigh recent efforts against previous failings to evaluate the likelihood that the parent will maintain a stable existence for the remainder of the childs childhood. (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) In this regard, the court aptly observed that mothers performance was like a roller coaster ride with significant ups and downs. Her most recent efforts had been positive, but she also had a significant relapse only a few months before. Most troubling is mothers reported failure to understand the risk her behavior and lifestyle pose to a child in her care. Thus, the juvenile courts termination of services at this stage is amply supported by the evidence.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

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^[1] All subsequent references are to the Welfare and Institutions Code unless otherwise specified.

^[2] There has been no contact with father since this time and reunification services to him were terminated at the review hearing on November 5, 2007.