Sara S. v. Superior Court
Filed 8/24/12 Sara S. v. Superior Court CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
SARA S.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN
DIEGO COUNTY,
Respondent;
D061923
(San Diego
County
Super. Ct.
No. EJ3301)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS
in mandate after referral to a Welfare and Institutions Code section 366.26
hearing. Gary M. Bubis, Judge. Petition denied; request for stay denied.
Sara S.
seeks writ review of a juvenile court order terminating
case of minor her son, Connor S., and setting a Welfare and Institutions Code
section 366.26
title="">[1]
hearing. Sara contends the court erred
by failing to return Connor to her custody and by terminating her reunification
services. We deny Sara's petition and
request for a stay.
FACTUAL AND
PROCEDURAL BACKGROUND
In 1993 or
1994, when Sara was 12 years old, she began drinking alcohol. She soon began using marijuana and
methamphetamine. When she was 13 or 14
years old, her parents sent her to a drug rehabilitation program. Sara attempted suicide twice during her
teenage years. She said she completed a
three-month outpatient drug treatment in 2007 in conjunction with a criminal
case,
but "then used drugs off and on until" November 2006. At that time, she learned she was pregnant
with Connor, and began what she claimed was a four-year period of
sobriety.
Connor was
born in June 2007. Sara often left him
with relatives, and told him, "I wish I never had you"; "go
away, just go"; and "I'm going to leave you out for the garbage
man." Connor told maternal aunt Amy
W., "[m]y mom is mean to me," and "my mom doesn't like me that's
why she doesn't keep me." Connor
imitated drug use with a plastic spoon and an imaginary cigarette lighter.
In August
2010, Sara and Connor were living with the maternal grandparents. The grandmother cared for Connor while Sara
drank heavily and slept late. On August
19, Sara left the home, leaving Connor behind.
On August 20, the grandmother and Amy opened two locked boxes Sara kept
in the room she shared with Connor. The
boxes contained drug paraphernalia, heroin and marijuana seeds, and there were
empty alcohol bottles in the room. On
August 23, Sara returned and picked up Connor.
On September 9, Sara told a social worker she had used methamphetamine,
marijuana and alcohol a few days earlier, and was unsure whether she would
continue using. Sara refused the social
worker's offer of voluntary services.
On
September 24, 2010, Sara took three-year-old Connor to the grandparents'
home. He was crying, hungry and
dirty. Sara said, "I'm going to go
kill myself," then left. The San
Diego County Health and Human Services Agency (the Agency) detained Connor with
Amy.
methamphetamine but denied needing treatment.
She acknowledged she could not meet Connor's needs.
On
September 29, 2010, the Agency filed a dependency petition based on the above
facts. In November, the court entered a
true finding on the petition; ordered Connor removed from Sara's custody and
placed with a relative; and ordered reunification services for Sara. The Agency designed a reunification plan
composed of substance abuse treatment and testing, parenting education,
individual therapy and visitation. The
Agency also offered Sara assistance with transportation and housing. The goals of the plan were for Sara to stay
sober; know her substance abuse triggers and relapse prevention skills; put
Connor's needs first; and provide him a safe and stable environment.
For the
first seven months of this case, Sara refused to participate in services. She initially refused any contact with Connor
and the first supervised visit did not occur until December 2010. Visits generally went well, but in early
February 2011, Sara stopped visiting. In
March, she moved in with the grandparents, and they found drug paraphernalia
among her belongings and saw track marks on her body. Sara admitted she needed inpatient drug
treatment. In April, she resumed visiting. Sara was patient and loving with Connor, and
they were affectionate with each other.
Sara usually occupied a parental role, but sometimes put her own needs
ahead of Connor's. At the six-month
review hearing in May, the court found Sara had not made substantive progress
in her case plan, but continued her services.
In May
2011, Sara entered residential drug treatment.
In June, she tested positive for marijuana and left residential
treatment. She moved in with the
grandparents and began individual therapy and a parenting program. In July, Sara began an outpatient substance
abuse treatment program. In August, she
tested positive for methamphetamine. In
September, she completed the parenting program and began telephoning
Connor. At the 12-month review hearing
on November 29, the court found Sara had made substantive progress in her case
plan and continued services.
In December
2011, Sara and Connor began conjoint therapy.
In February 2012, Sara completed individual therapy, although her therapist
reported Sara had not learned to "[recognize] unhealthy relationship
dynamics." By early 2012, Sara had
progressed to unsupervised visitation
and, in February, overnight visits began.
Overnight visits ended in March; Connor was uncomfortable spending the
night with Sara,
title="">[5] and she
was not always attentive to him. In
April, overnight visits resumed.
In April
2012, Sara attended one of Connor's medical appointments for the first and last
time.
that required constant attention, and Sara did not understand how to manage his
medication and inhaler regimen. Connor's
physician said it would be best for Connor's health that he continue to live
with Amy.
As of late
April 2012, Sara was on a two-month waiting list for housing at St. Vincent De
Paul. She had rejected the social
worker's advice to consider a sober living facility.
early May, Sara was living with the grandmother in senior housing, where Connor
would not be allowed to reside. The
grandmother used syringes to inject prescribed narcotic medication and had a
history of enabling Sara's addiction.
Sara said that needles were one of her triggers. The social worker had told her several times
that she would need to move before Connor could be placed with her.
By the time
of the hearing, Connor was not quite five years old. Visits were occurring almost daily, although
Sara did not take advantage of all the time she was offered. Connor generally enjoyed visits, but
sometimes resisted visiting, and never asked to call Sara between visits. After visits, he was happy to return to Amy's
home. Following visits, he sometimes
acted out and had trouble sleeping. He
wet his pants, bit his cuticles until they bled, bit Amy and kicked her
daughter in the face. Sara told Connor
to say he wanted to spend the night with her, and prompted him to repeat this
in a voicemail message to the social worker.
Sara told Connor he was going to live with her.
At the
hearing, Sara testified she was going to move in with her uncle "this
weekend."
title="">[8] The uncle had a history of illicit drug use,
and had a medical condition that required him to use syringes. Sara testified she had no income and could
not afford to move to a sober living facility.
She had just begun looking for a job, planned to apply for public
assistance
and admitted that financial stress was one of her triggers. When the court asked Sara to define asthma,
Sara replied, "I'm not exactly sure."
She was also unsure how much medication to give Connor if he had an
asthma attack. Against the
recommendation of Connor's teacher, Sara planned to transfer Connor to a
different school.
name="_ftnref10" title="">[10]
The social
worker testified it would be detrimental to Connor's emotional well-being to be
returned to Sara's custody. Overnight
visits and increased visitation were difficult for Connor, and visits made him
anxious.
title="">[11] Sara had an 18-year history of substance
abuse, was in the early stages of recovery and had relapsed previously. The social worker was concerned about Sara's
ability to manage Connor's asthma.
On May 3,
2012, the court made the following findings:
Sara had "a significant drug addiction"; "chose to ignore
[her] situation for seven to eight months"; participated in services for
only seven or eight months; did not complete drug treatment; and failed in
residential drug treatment, a program necessitated by her long history of drug
use. Sara knew housing was an issue, yet
did nothing to address it. She showed a
lack of insight by planning to live with her uncle, who used needles, one of
her triggers. Sara had not created a
safe and stable environment. Her
therapist had observed that Sara had "not yet found those with whom she
can identify who have not either used or had criminal backgrounds." Although Sara had a working knowledge of how
to treat asthma, in 18 months she had not taken the simple step of learning
what asthma was. The court concluded
Sara had been provided reasonable services and had made "some progress"
in her case plan, but returning Connor to Sara's custody would create a
substantial risk of detriment to his physical and emotional well-being. The court continued Connor's relative
placement, terminated Sara's services and set a section 366.26 hearing.
After the
court made its findings and orders, Sara's counsel requested an order for
"family counseling," apparently to address the conflict between Sara
and Amy. Counsel also requested conjoint
therapy for Sara and Connor. Counsel
cited no authority for the requests, but claimed these services would be in
Connor's best interests. The court
denied the requests.
Sara
petitioned for review of the court's orders.
(§ 366.26, subd. (l); Cal.
Rules of Court, rule 8.452.) This court
issued an order to show cause, the Agency responded and the parties waived oral
argument.
DISCUSSION
I
Sara
contends the Agency failed to prove there would be a substantial risk of
detriment to Connor if he were returned to her custody, and therefore the court
erred by refusing to order his return.
Sara claims she participated regularly and made substantive progress in
reunification services and her unsupervised visits were regular, appropriate
and loving. She concludes the court
should have returned Connor to her, with family maintenance services if
necessary.
title="">[13]
A
At the
18-month review hearing, "[t]he court shall order the return of the child
to the physical custody of his or her parent . . . unless
the [Agency proves], by a preponderance of the evidence, that the return . . . would
create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. . . . 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. In making its determination, the court
shall . . . consider the efforts or progress, or both,
demonstrated by the parent . . . and the extent to which he
or she availed himself or herself of services
provided . . . ."
(§ 366.22, subd. (a).) "[W]hile the court must
consider the extent the parent has cooperated with the services provided and
the efforts the parent has made to correct the problems which gave rise to the
dependency [citation], the decision whether to return the child to parental
custody depends on the effect that action would have on the physical or
emotional well-being of the child."
(In re Joseph B. (1996) 42
Cal.App.4th 890, 899.) The showing of detriment is not restricted
"to the type of harm which necessitated dependency
intervention." (
On appeal,
we apply the substantial evidence standard of review, and view the record in
the light most favorable to the court's order.
(See In re Luke M. (2003) 107
Cal.App.4th 1412, 1426.) We give " 'full
effect to the respondent's evidence, however slight, and [disregard] the
appellant's evidence, however strong.' "
(Sheila S. v. Superior Court
(2000) 84 Cal.App.4th 872, 881, quoted in In
re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) "We do not reweigh the evidence, evaluate the
credibility of witnesses, or resolve evidentiary conflicts." (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.) "The
judgment will be upheld if it is supported by substantial evidence, even though
substantial evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence." (Ibid.)
B
During
Sara's 18-year history of substance abuse, she participated in four treatment
programs. At the time of the hearing,
she had been sober for slightly more than eight months, a far shorter period
than the previous four years of sobriety she claimed. She had progressed in her drug treatment
program, but her tenure of approximately nine months was three months shy of
the duration of a typical program. She
planned to live with her uncle, who used needles, one of her triggers, and had
only begun to look for work, although financial stress was another trigger. She had completed a parenting course and
individual therapy.
While Sara
had made some progress in services, she continued to demonstrate a lack of
concern for Connor's physical and emotional well-being. Rather than seeking to alleviate his anxiety
regarding visitation, she coached him to say he wanted overnight visits and
told him he was going to live with her.
Sara showed little interest in Connor's schoolwork, and planned to send
him to a new school against his teacher's advice. Sara had made little effort to learn about
Connor's asthma. In short, she had not
created a safe, secure and stable environment for him. There is thus substantial evidence to support
the court's finding that a return to Sara's custody would be detrimental
Connor, and the court did not err by declining to order a return.
II
Sara
contends her tense relationship with Amy was the main obstacle to
reunification, and their communication difficulties adversely effected
visitation arrangements, Sara's telephone contact with Connor and her
participation in his medical appointments.
Sara argues because the Agency failed to offer her and Amy family
counseling, services were not reasonable, and the court therefore abused its
discretion by denying Sara's request, under section 352, for a continuance of
services beyond the 18-month date. Sara
claims an extension of services, including family counseling, would have
allowed her to reunify and would not have prejudiced Connor. The Agency argues Sara forfeited her right to
raise these contentions by not doing so in the juvenile court.
A
In an
appeal from orders made at the 18-month review hearing, the appellant may not
challenge "prior orders for which the statutory time for filing an appeal
has passed." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Thus, Sara may not now challenge the adequacy
of the reunification plan ordered at the dispositional hearing. (Ibid.) Moreover, "[i]f [she] felt during
the reunification period that the services offered her were inadequate, she had
the assistance of counsel to seek guidance from the juvenile court in
formulating a better plan: ' "The
law casts upon the party the duty of looking after his [or her] legal rights
and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party
would in most cases be careful to be silent as to his objections until it would
be too late to obviate them, and the result would be that few judgments would
stand the test of an appeal."
[Citation.]'
[Citation.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
Sara notes that at a July
2011 meeting, the parties discussed family counseling, but the Agency did not offer it.
review hearing, at which the court found Sara had been provided reasonable
services. Sara did not appeal the
12-month review findings and may not now challenge them.
Following
the 12-month review hearing, Sara did not dispute the adequacy of
services. At the 18-month review
hearing, her counsel expressly said she was "not contesting
services."
title="">[15] After the court made its findings and orders,
counsel asked the court to order family counseling, but cited no legal
authority. Counsel's belated request is
a classic case of remaining "silent as
to . . . objections until it would be too late to obviate
them . . . ." (In re Christina L., supra, 3 Cal.App.4th at p. 416.) Sara has thus forfeited the right to
challenge the court's failure to order family counseling and the Agency's
failure to offer family counseling.
B
Even if we construe trial counsel's
request for family counseling as a request for a continuance, Sara cannot
prevail. Section 352, subdivision
(a) provides: "[T]he court may
continue [a] hearing . . . beyond the time limit within
which the hearing is otherwise required to be held, provided that no
continuance shall be granted that is contrary to the interest of the
minor. In considering the minor's
interests, the court shall give substantial weight to a minor's need for prompt
resolution of his or her custody status, the need to provide children with
stable environments, and the damage to a minor of prolonged temporary
placements. [¶] Continuances shall be granted only upon a
showing of good cause . . . ." "At the 18-month review hearing, the court
may continue the hearing under section 352 if it finds that reasonable family
reunification services have not been offered or provided to the parents."
J. v. Superior Court, supra, 202
Cal.App.4th at p. 1424.) We review the
denial of a continuance for abuse of discretion. (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 605.) Thus, we will not disturb the juvenile
court's ruling unless
we can say it "was ' "arbitrary, capricious, or patently
absurd," ' or that no reasonable court would have ruled the same
way." (In re S.A. (2010) 182 Cal.App.4th 1128, 1139, quoting
412, 421.)
Even if the
court's reasonable services finding was unsupported by substantial evidence,
there would be no abuse of discretion in failing to continue services beyond
the 18-month date. Connor had been in
the dependency system for more than one and one-half years. It was time to honor his "need for
prompt resolution of his . . . custody status," and
his need for a "stable environment[]." (§ 352, subd. (a).)
DISPOSITION
The
petition is denied. The request for stay
is denied.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] Further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Sara was charged with transporting,
possessing and being under the influence of a controlled substance; driving
under the influence of methamphetamine; possessing drug paraphernalia; and
driving without a license. The record
does not reflect which of these charges resulted in convictions.
