T.B. v. Super.
Filed 12/13/12 T.B. v. Super. Ct. CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
T.B.,
Petitioner,
v.
THE SUPERIOR
COURT OF CONTRA
COSTA COUNTY,
Respondent;
CONTRA
COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
A136706
(Contra
Costa County
Super. Ct.
Nos. J11-01094, J11-01095)
Mother
seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) directed to the
juvenile court’s order issued at a contested six–month review hearing
terminating her reunification services
and setting a Welfare and Institutions Code
section 366.26 hearing as to her two children, both of whom were under the
age of three when removed from her custody. She contends the juvenile court
“abused its discretion by not providing [her] additional time to participate in
reunification services despite a showing of extraordinary circumstances.†We
shall deny the petition.
On August
4, 2011, the
County Children and Family Services Bureau (the Bureau) filed petitions
alleging that the children came within the meaning of section 300, subdivisions
(b), (g), and (j). The petitions alleged, among other things, that mother had a
substance abuse problem that impairs her ability to care for the children, that
the mother was involved in a domestic
violence relationship that places the children at risk of harm and that
mother previously failed to reunify with the children’s half-sibling due to her
substance abuse despite the provision of services. The petitions alleged that
the children had been detained and placed in a foster home as of August 2, 2011. On September 16, the
court sustained the allegations in the petition and continued the children in
their foster care placement.
In advance
of the disposition hearing, the Bureau recommended that no reunification
services be provided to mother based on her reluctance to admit she had a
substance abuse problem and her prior failure to reunify with the children’s
older half-sibling. The social worker explained that in the four years that the
Bureau had been supervising mother, she had participated in four different
treatment programs and that each time she completed the program but relapsed
shortly thereafter. The older child was returned to mother’s care three times
during the prior dependency proceedings before parental rights were finally
terminated. By the time the disposition hearing was held in this case in
February 2012, mother had been participating in an outpatient treatment program
for five months. Based on the positive reports from the program, the court
ordered reunification services for mother.
In July
2012, in advance of the six-month review hearing, the Bureau submitted a report
regarding mother’s progress. The social worker reported that mother’s father
passed away in January 2012 and that, thereafter, she became homeless. She
moved around the Bay Area looking for housing but was unsuccessful and at the
time of the report was homeless in Oakland.
She had not participated in individual counseling, anger management, or
domestic violence services as required by her case plan. She stopped
participating in her drug treatment program in March 2012 and, although she had
participated in some drug testing, she had missed eight tests. Mother refused
the social worker’s recommendation that she enter a residential treatment
program, opting instead to make her own plans. Her visits with the children
were intermittent, but of good quality. The Bureau submitted an updated memo at
the September 9, 2012 review
hearing, reporting that at the end of July mother had moved into a shelter in Berkeley
that provides substance abuse services for homeless individuals and that she
had begun participating in an outpatient treatment program.
At the
hearing, Mother acknowledged that she had used methamphetamine “randomly†in
May and June because she was “having a moment†and “wasn’t quite finished
grieving.†She testified she began the new out-patient program on August 8 and
that since then she had only one positive drug test for marijuana, which she
uses to control the pain from multiple sclerosis. She also reported that she
missed two tests because she was hospitalized briefly at the end of August.
The court
terminated reunification services and set a section 366.26 hearing. The court
explained to mother, “[W]hen I look back . . . at your history,
. . . what happens is you have ups and downs, but you kind of get it
together right before these kind of big review dates, and then after the review
date passes and then you get some more time given to you, then you fall into
relapse. [¶] It seems to have happened in the case of your previous
child[], and it seems to have happened even in the history of this case.
Whereas, after disposition, I went and ordered . . . services and –
in February, and in March you fail out of the Ujima program. Now you’re back in
another residential program.â€
Mother
filed a timely notice of intent to file a writ
petition.
Section
366.21, subdivision (e), the governing statute at the six–month review hearing,
grants the juvenile court discretion to terminate reunification services and
set a section 366.26 hearing where, as here, the child was under three years of
age at the time of removal and the juvenile court finds by
parent failed to participate regularly and make substantive progress in a
court-ordered treatment plan. If, however, the court finds there is a
substantial probability that the child may be returned to his or her parent
within six months, the court shall continue the case to the 12–month permanency
hearing.
(Ibid.)
Mother
concedes that the record establishes that she failed to participate regularly
and make substantial progress in the court-ordered reunification plan. She also
concedes that she could not establish a reasonable probability that the
children would be returned to her within the one month remaining before the
12-month review hearing. (See Tonya M. v.
Superior Court (2007) 42 Cal.4th 836, 846 [where the 12–month date was
approximately four months away rather than six, the court was to “consider only
what the impact of those four months
of services would be on the parent[s] and [children]â€].) Nonetheless, citing
1774, mother argues that the juvenile court had discretion to provide her with
an additional six months of services based on “exceptional circumstances.†She
argues that she was entitled to additional time to complete her plan because of
her father’s death and her resulting lack of housing.
In
pages 1778-1779, the court held that section 352 provides “an emergency escape
valve in those rare instances†in which the juvenile court determines the best
interests of the child would be served by a continuance of a review hearing
beyond the statutorily permissible time limit. In that case, the mother had an
“impeccable record of visitation and efforts to comply with the reunification
plan†but her efforts were unsuccessful because she was hospitalized for all
but five months of the reunification phase of the dependency proceedings. (
concluded that these “unusual facts . . . required exigent judicial
intervention.†(Id. at p. 1799.)
The Bureau
argues that Elizabeth R. is
procedurally distinguishable in that it involved judicial extension of the 18-month
time limit, not the provision of services beyond the six-month review hearing.
The Bureau also questions whether the exception remains viable in light of
subsequent amendments to section 366.22, including section 366.22, subdivision
(b), which now expressly authorizes the extension of services beyond the
18-month deadline if in the best interest of the child. We need not consider
these arguments because even if the exception remains, the facts here did not
require the court to invoke it.
While the
circumstances identified by mother undoubtedly were challenging, they are not
so unusual or extraordinary as to render an abuse of discretion the juvenile
court’s failure to find them sufficient to support an exception to the clear
statutory deadlines. Contrary to mother’s suggestion, her inability to make
progress in her case plan was caused in significant part by her own behavior,
which was entirely consistent with her lengthy history of drug use. (See
Cal.App.4th 1377, 1388 [“extraordinary circumstances†did not justify extension
of family reunification services beyond the statutory limit where failure of
the case plan was not caused by an external force over which mother had no
control, but by mother's relapse into cocaine abuse].)
The
petition for extraordinary writ is denied. This opinion is final forthwith as
to this court.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code unless
otherwise noted.
Section 366.21, subdivision (e) provides in relevant part, “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 as determined in Section 361.49, whichever occurs
earlier, the court shall order the return of the child to the physical custody
of his or her parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to his or her
parent or legal guardian 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 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. . . .
[¶] . . . [¶] 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. If, however, the
court finds there is a substantial probability that the child, who was under
three years of age on the date of initial removal . . . may be
returned to his or her parent or legal guardian within six months or that
reasonable services have not been provided, the court shall continue the case
to the 12-month permanency hearing.â€
