Amber Y. v. Super. Ct.



















Filed 8/15/12
Amber Y. v. Super. Ct. CA5







NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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


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AMBER Y., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.

F065096 (Super. Ct. No. JD127414) O P I N I O N

THE COURT^*

ORIGINAL
PROCEEDINGS; petition for extraordinary writ review. Louie L. Vega, Judge.

James V.
Sorena, for Petitioner.

No
appearance for Respondent.

Theresa A.
Goldner, County Counsel, and Paul E. Blackhurst, Deputy County Counsel, for
Real Party in Interest.

-ooOoo-

Amber Y. seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued
at a contested six-month review hearing (Welf. & Inst. Code, § 366.21,
subd. (e))^[1] terminating her reunification services and setting a
section 366.26 hearing as to her one-year-old son, K.Y.^[2] She contends the juvenile court erroneously
terminated reunification services without considering the barriers to
reunification she faced as an incarcerated parent as required by section
366.21, subdivision (e). We deny the
petition.

PROCEDURAL AND FACTUAL SUMMARY

These dependency proceedings were initiated in
September 2011 when the Kern County Department of Human Services (department)
took then three-month old K.Y. into protective custody because of Amber’s drug
use. At the time, Amber was on probation
following an arrest for robbery. One of
the conditions of her probation included drug treatment. Amber was in a drug treatment program when the
department removed K.Y. from her.

In the several days following
K.Y.’s removal, Amber smoked and injected methamphetamine. She was arrested by her probation officer
after testing positive for the drug.
Amber was released on bail and left the state. After she failed to appear in her criminal
proceedings, she was arrested on a bench
warrant and extradited to Kern County.


Meanwhile, the juvenile court
ordered K.Y. detained and ordered the department to provide Amber reunification services. The department offered Amber counseling in
parenting, substance abuse and child neglect and random drug testing.

In November 2011, Amber pled guilty
to various charges and, in December 2011, she appeared in custody at the
dispositional hearing. The juvenile
court ordered K.Y. removed from the custody of his parents, Amber and Kurtis,
and ordered them to participate in reunification services. Amber’s services plan comprised of the
services previously ordered. The
juvenile court also advised Amber and Kurtis that their failure to regularly
participate and make substantive progress in their court-ordered services could
result in the termination of reunification services at the six-month review
hearing which it set for June 2012.

In January 2012, Amber was
committed to Valley State Prison for Women in Chowchilla for two years.

In March 2012, Amber contacted
social worker Rolando Hernandez, stating that she wanted to participate in her
services but did not know if they were available in prison. She said they offered parenting/neglect
classes and substance abuse counseling at Chino State Prison and was willing to
request a transfer there if the services were not available at Chowchilla.

Mr. Hernandez spoke with a prison
counselor at Chowchilla who said that Amber had placed her name on the waiting
list for substance abuse counseling in February 2012, but that the waiting list
was long. The counselor said he did not
have access to the parenting class, but said all the inmates had access to the
class and it was their responsibility to provide verification of their attendance
to the social worker. Mr. Hernandez told
the counselor that Amber applied to have K.Y. placed with her through the
community prisoner mother program but that the department did not approve her
having him in her custody.

Amber and K.Y. visited in April and
May 2012 and the visits went well.

In June 2012, the juvenile court
conducted the six-month review hearing.
Amber appeared in custody and through counsel argued the juvenile court
should continue reunification services.
Her attorney argued that Amber’s failure to complete her court-ordered
services was not a matter of choice but rather a lack of access to them by
virtue of her incarceration. Under those
circumstances, her attorney further argued, the juvenile court was required,
under section 366.21, subdivision (e), to consider the extent to which Amber’s
incarceration prevented her from participating in services when deciding
whether to terminate them.

At the conclusion of the hearing,
the juvenile court followed the recommendation of the department, terminated
reunification services for both parents and set a section 366.26 hearing. In doing so, the juvenile court found that
Amber availed herself of the services provided and made minimally acceptable
efforts. The juvenile court also found
that Amber failed to participate regularly and make substantive progress in her
court-ordered services and that there was not a substantial likelihood K.Y.
could be returned to her custody within another six months. This petition ensued.

DISCUSSION

Amber contends that the juvenile
court misapplied section 366.21, subdivision (e) by not considering that the
unavailability of services in prison prevented her from completing her
reunification services. We find no
support for her contention in the record.

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 clear and convincing evidence that the
parent failed to participate regularly and make substantive progress in a
court-ordered treatment plan. In
determining whether an incarcerated parent regularly participated and made
substantive progress, section
366.21, subdivision (e) requires the juvenile court to consider such a
parent’s ability to access the services ordered.

Amber contends that the juvenile
court erred by not considering whether she had access to her court-ordered
services. The record, however, does not
support her claim. According to the reporter’s
transcript of the six-month review hearing, Amber’s attorney argued that the
services ordered for her were not available to her in prison and specifically
cited the juvenile court to section 366.21, subdivision (e) and its mandate
that the court consider how Amber’s incarceration may have prevented her from
accessing those services. While the
juvenile court did not address Amber’s access to services in issuing its
ruling, we must presume that the juvenile court properly applied the law unless
the appellant affirmatively establishes otherwise. (Mejia
v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.) Here, other than asserting the claim, Amber
does not show that the juvenile court failed to take her incarceration into
proper consideration. Thus, we presume
that it did and find no error.

DISPOSITION

The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.