In re Ray B.

Filed 3/20/07 In re Ray B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING; petition for writ of mandate. Jacqueline Lewis,

Temporary Judge. (Pursuant to Cal. Const. art. VI,  21.) Petition denied.

Helen Yee for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Fred Klink, Senior Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.

Childrens Law Center of Los Angeles and Estaire Press for Real Party in Interest Ray B.

Petitioner K.G. seeks extraordinary writ review of the juvenile courts order, made at the 12-month review hearing (Welf. & Inst. Code,  366.21, subd. (f)),[1] setting a hearing for the selection and implementation of a permanent plan for her two-year-old son Ray. The petition is opposed by the Department of Children and Family Services (Department) and also by Ray, who has filed a joinder in the Departments response. We deny the petition, finding no merit in K.G.s contention the court should have ordered extension of reunification for an additional period.

FACTS AND PROCEDURAL BACKGROUND

Ray was born in May 2004 at 24 weeks of the gestation period weighing just one pound and six ounces, and as a result suffered from multiple chronic medical conditions requiring constant medical attention. One of Rays medical problems required that a tracheal tube remain inserted in his throat so he could be attached to a respirator whenever he experienced respiratory distress. On September 13, 2005, when Ray was sixteen months old, his maternal grandmother (Charlene A.) took him to the hospital because the tracheal tube had been removed while he was in K.G.s care, and the hole in his neck for the tube was closing up.

Rose Croupen, a social worker at the hospital, told the Departments social worker, Lorraine Mosby, that she had telephoned K.G. to obtain information as to how the tracheal tube was removed, and K.G. gave inconsistent stories, became irate and irrational, screamed profanities into the phone, and hung up on Croupen three times. Croupen added that on several previous occasions K.G. had arrived at the hospital under the influence of drugs or alcohol. The admitting physician at the hospital told Mosby that Ray would likely have died had he developed respiratory problems without the tracheal tube in place.

The following day Mosby spoke with K.G., who stated that early in the afternoon of the previous day she and a nurse who was helping to provide care for Ray noticed that the tracheal tube was not properly in place, but they were unsuccessful in trying to reinsert it. K.G. telephoned Rays pediatrician and left him a message, then left for the store for a few minutes. When K.G. returned, the nurse told her the pediatrician had called back with instructions that Ray be taken to the hospital to have the tube reinserted, but K.G. did not do so because she did not think it was an emergency, Ray did not appear to be in pain, and she did not have a car. The nurse confirmed the circumstances of the incident, and stated that she left at 3 p.m. when her shift ended and assumed K.G. would make arrangements to take Ray to the hospital.

On September 16, 2005 the Department filed a petition under section 300 to declare Ray a dependent child of the juvenile court. The petition alleged K.G. had failed to obtain prompt medical treatment for Rays delicate and unique medical condition, and on prior occasions was so under the influence of drugs or alcohol that she could not provide proper care for him. The petition further alleged K.G. and Rays father had a history of engaging in violent physical altercations. On September 16, 2005 the court ordered Ray detained.

In a report submitted October 17, 2005 for the jurisdiction and disposition hearing, the Department indicated K.G. had told the social worker that the in-home nurse had removed the tracheal tube from Rays neck by mistake on September 13, and K.G. and the nurse were unable to put it back in place. Rays pediatrician told K.G. to take Ray to the hospital, but Ray did not appear to be having breathing distress so she did not take him. Later in the afternoon Charlene A. came to the home, called 911, and was told to take Ray to the hospital. Charlene A. did so, but K.G. did not go along because she had a cold and did not feel well. K.G. added that she had taken Nyquil for the cold, and feared hospital staff might think she was under the influence of alcohol because a nurse had smelled alcohol on her breath on a previous hospital visit. K.G. acknowledged she had a conviction for driving under the influence of alcohol.

A nurse who had provided in-home care for Ray told the social worker that K.G. had a drinking problem, and her demeanor changed when she had been drinking. A physical therapist who had provided treatment for Ray told the social worker she had never seen K.G. under the influence of alcohol, but K.G. did not participate in the therapy and appeared to be in denial about Rays very serious and permanent medical conditions. Rays father told the social worker K.G. drank, but he did not think it was a big problem.

On November 30, 2005 the court sustained the dependency petition, as amended to allege medical neglect and a history of alcohol abuse against K.G., and a history of domestic violence against K.G. and the father. The court proceeded immediately to the dispositional stage, and ordered the Department to provide reunification services for K.G. and to place Ray with Charlene A. and her husband, with discretion to permit K.G. to live in the home. The court ordered K.G. to complete a program of parenting education for medically fragile children, an alcohol program including individual counseling and random testing, and a program of domestic violence counseling for victims. The court continued the case to April 17, 2006 for the six-month review hearing. ( 366.21, subd. (e).)

The Departments report for the six-month hearing indicated K.G. was participating in her court-ordered programs and had tested negative for alcohol eight times, but had failed to appear for four other scheduled tests. Although K.G. had attended most of Rays medical appointments, she had missed two appointments with a surgeon and one with a pediatrician. The Department recommended termination of reunification for K.G., explaining that in view of Rays incredibly fragile medical condition any missed appointment could be detrimental to his life, and K.G.s failure to attend all appointments showed that a principal issue that brought the case to the Departments attention had not been alleviated. On April 17 the court continued the six-month review hearing to May 10 for a contest.

In a supplemental report for the contested six-month hearing, the Department stated K.G. had been inconsistent in her visitation with Ray and had been out of contact with the grandparents for several days in a row on more than one occasion. The grandfather had reported that on April 16 he received a call from K.G., and the conversation left him with strong doubts as to her sobriety. At the contested hearing, the court ordered the Department to continue to provide reunification services to K.G. and continued the case to October 16, 2006 for the 12-month review hearing. ( 366.21, subd. (f).)

In its report for the 12-month hearing, the Department indicated K.G.s visitation with Ray from May through July had been inconsistent, and she often remained out of touch with the caregivers for periods of up to three days. K.G. also failed to keep several appointments with the social worker, and attributed her failure to visit and maintain contact with the social worker to unspecified medical issues. On July 3 the grandparents left a telephone message with the social worker advising that K.G. had appeared at their home in an agitated state and smelling strongly of alcohol, became verbally abusive, refused to leave, and eventually did so only after the grandparents called for assistance from a security officer.

The Department further reported that a meeting had been held on August 2 to develop a safety plan with the objective of gradually reintroducing Ray to K.G.s care. Under the plan, K.G. was to assume primary care of Ray six hours daily at the grandparents home, with the matter to be reviewed in three weeks and the time period possibly extended if K.G. demonstrated ability to provide proper care. During the initial three weeks K.G. failed to arrive on one occasion and was late several other days. On August 27 the review was put off for three more weeks, but over the course of that period she again failed to appear on seven occasions. On September 7 Inglewood police officers brought K.G. to the grandparents home after they found her sitting on a concrete barrier under the influence of alcohol or drugs. At a meeting with the social worker and the grandparents on September 25, K.G. refused to accept responsibility for the missed visits and attributed her absences to undetermined health issues, but admitted she had not received medical services recently. K.G. also stated that she had not called the grandparents to tell them she was not coming over because she did not want to worry them. The day after the meeting, K.G. was brought to the grandparents home in a disheveled and intoxicated state by a woman who explained that she had found K.G. lying in the grass at the Inglewood Forum. When contacted by the social worker later in the day K.G. denied being under the influence and agreed to test immediately, but failed to appear for the test. Between September 26 and the October 12 date of the report, K.G. visited Ray just once. The Department again recommended termination of reunification services.

On October 16 the 12-month hearing was continued to November 28 for a contest. In an addendum report for the continued hearing, the Department indicated that the maternal grandparents were no longer willing to monitor K.G.s visits. K.G. was very agitated during an interview with the social worker on October 18, stated that she had missed visits because she was not well, and repeatedly accused the grandparents of being against her, adding that they had blocked her telephone calls.

At the contested hearing on November 28 the social worker, William Cochrane, testified K.G. had completed some of her counseling programs and was participating in others. She had not complied with Cochranes request to provide verification of her drug test results and had recently failed to appear for a test. She had failed to comply with the daily child care responsibilities required by the safety plan, which was put in place to determine her ability to provide independent care for Ray. Given the limited amount of time remaining before the case reached the statutory time limit for reunification,[2] Cochrane did not believe there was sufficient time for K.G. to acquire the ability to care for Ray.

When the hearing resumed on November 30, Charlene A. testified K.G. smelled of alcohol and appeared intoxicated both times she was brought to Charlene A.s home in September, once by police officers and the other time by a woman from the neighborhood. Charlene A. further stated, When my daughter is herself, shes an excellent mother, but she could not say yes or no when asked if K.G. was more ready to care for Ray now than she was when the dependency case started.

In her own testimony, K.G. attributed her behavior when she was delivered to the grandparents home by the police and when the neighbor brought her to the home to the effects of drugs prescribed to her by her physician, adding that the odor of alcohol detected by Charlene A. on her breath came from some very strong mouthwash she had used. K.G. further testified she could provide proper care for Ray, had missed visits because she had a cold and she sprained her knee, and had completed all of the counseling programs called for in her case plan. When asked why she did not appear for alcohol testing on September 26, K.G. stated she felt really hurt, considered the test to be punishment, thought the social workers were treating her in an inhumane manner, and she just didnt trust them.

At the conclusion of testimony, counsel for the Department requested the court terminate reunification. Counsel stressed that Ray was a fragile child afflicted with severe medical problems and in need of consistent and steady care, and urged it was clear K.G. was incapable of providing care for him. She had not resolved her alcohol problem despite extensive counseling, and was completely incapable or unwilling to comply with the requirements of the safety plan which was implemented to measure her ability to regain custody of Ray.

Rays counsel joined in the request that reunification be terminated, pointing out that K.G. did not complete her court-ordered programs; was sporadic in visitation; missed alcohol and drug tests; and continued to use alcohol while denying she did so.

Counsel for K.G. requested that the court extend reunification for an additional period to prove to the court exactly what the court wants of her.

After hearing argument, the court pointed out that the statutory limit for reunification would be reached on March 16, 2007 and found that there was not a substantial probability that Ray could be returned to K.G. with an extension of reunification to that date. The court stressed that K.G.s alcohol abuse problem was one of the main reasons the case came before the court, and it was apparent K.G. had not resolved this problem and lacked insight even to recognize the serious nature of the problem and its effect on her ability to care for Ray. The court found that although K.G. had substantially complied with her case plan, she had failed to make progress toward resolving her problems and there was not a likelihood she could make sufficient progress by the 18-month date to regain custody of Ray. The court proceeded to terminate reunification and set the matter for a hearing to select and implement a permanent plan for Ray. ( 366.26.)

DISCUSSION

We reject K.G.s contention the court abused its discretion by declining to extend reunification for an additional period, as the record contains substantial evidence to support the courts determination there was not a substantial probability that Ray could be returned to K.G. within the additional period.[3] In order to find a substantial probability that a child will be returned to the parents custody within an extended period of time, the court is required to find that the parent: has consistently and regularly contacted and visited the child; has made significant progress in resolving the problems that led to the childs removal; and has demonstrated the capacity and ability both to complete the objectives of her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1).)

The record in this case, as we have set forth, shows that K.G.s visitation with Ray was sporadic and inconsistent: She repeatedly missed visits and she sometimes arrived late when she did visit; she missed medical appointments scheduled for Ray; she failed to appear on multiple occasions to provide care for Ray as required by the safety plan; she refused to accept responsibility for the missed visits; and she often remained out of contact with Rays caregivers for several days in a row.

The record also shows that K.G. did not make significant progress in resolving her alcohol problem, which rendered her incapable of providing care for Ray and was the principal reason he was removed from her custody. Finally, K.G.s lack of insight into her own problems and her failure to accept responsibility for those problems and instead to place blame on others, reflects her inability to complete the objectives of her treatment plan and to provide care for any child, let alone care of the level required for a child in an extremely fragile condition. The record in this case thus belies any claim K.G. could become able to provide a stable home for Ray within the next three and one-half months.

DISPOSITION

The petition is denied on the merits.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J.

WOODS, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] When a child is under the age of three when initially removed from a parents custody, the parent is generally accorded only six months of reunification services. ( 361.5, subd. (a)(2).) The time period may be extended to a maximum of 18 months, measured from the date of initial removal, if the court finds at the six- and 12-month review hearings there is a substantial probability that the child will be returned to the parent within the extended time period. ( 361.5, subd. (a)(3), 3d par., 366.21, subds. (e), 3d par. & (g).) Because Ray was removed from K.G.s custody on September 14, 2005, as of November 28, 2006 only three and one-half months remained before the 18-month time limit would expire.

[3] When we review the juvenile courts findings under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontradicted, that supports the courts determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)