Filed 2/20/14 Y.L. v. Super. Ct. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

Y.L.,
                                                                                           F068440
         Petitioner,
                                                                            (Super. Ct. Nos. JD123493-01,
                   v.                                                        JD123494-01, JD126381-01,
                                                                                    JD130228-00)
THE SUPERIOR COURT OF KERN COUNTY,

         Respondent;                                                                     OPINION
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,

         Real Party in Interest.


                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Louie L.
Vega, Judge.
         Y.L., in pro. per., for Petitioner.
         No appearance for Respondent.
         Theresa A. Goldner, County Counsel, Paul E. Blackhurst, Deputy County
Counsel, for Real Party in Interest.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Poochigian, J, and Peña, J.
       Y.L. (mother) in propria persona seeks extraordinary writ relief from the juvenile
court’s orders issued at a six-month review hearing (Welf. & Inst. Code, § 366.21, subd.
(e))1 in November 2013, terminating her reunification services and setting a section
366.26 hearing as to her four daughters, Mo., Me., Melanie and Ma., who range in age
from one to five years. Mother contends the juvenile court erred in finding she failed to
regularly participate and make substantive progress in her family reunification services
and in finding there was not a substantial probability the children could be returned to her
custody. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       Mother has a long history of methamphetamine use, which began when she was 15
years old. At the six-month review hearing in November 2013, she was 22 years old, had
four children, and was pregnant with a fifth child.
       In September 2009, the Kern County Department of Human Services (department)
received a report that then newborn Me. tested positive for amphetamine. Mo. was then
one and one-half years old.
       The department did not detain Mo. and Me. but instead offered mother voluntary
family maintenance services including drug treatment. However, she could not abstain
and in March 2010, was terminated from a drug treatment program. That same month,
the department took Mo. and Me. into protective custody and the juvenile court ordered
them detained.
       In April 2010, the juvenile court ordered mother and the children’s father to
participate in family reunification services. Mother’s services plan required her to
participate in child neglect, parenting, domestic violence and substance abuse counseling,
and submit to random drug testing.



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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       In April 2010, mother entered a 45-day residential drug treatment program, which
she successfully completed. She subsequently enrolled in outpatient drug treatment but
was discharged for nonattendance. She was also dropped from her parenting class for
nonattendance and tested positive for methamphetamine in August 2010. She
consistently visited Mo. and Me., however, and their visits were of good quality.
       In October 2010, the juvenile court found mother and the children’s father made
minimal progress in their services plans, terminated their reunification services, and set a
section 366.26 hearing for February 2011.
       In February 2011, prior to the section 366.26 hearing, mother filed a section 388
petition asking the juvenile court to return Mo. and Me. to her custody under family
maintenance services or reinstate family reunification services. Mother stated in her
petition that she entered a residential drug treatment program in November 2010,
subsequently maintained her sobriety and participated in all the counseling required
under her prior services plan. In addition, she maintained her bond with the children
through visitation and expected to complete her counseling requirements in two months.
The juvenile court denied her request for a hearing on the section 388 petition.
       In February 2011, the juvenile court conducted a section 366.26 hearing on the
department’s recommendation to terminate mother’s parental rights. After an evidentiary
hearing, the court found clear and convincing evidence that terminating mother’s parental
rights would be detrimental to Mo. and Me. and approved their placement in a planned
permanent living arrangement.
       In May 2011, mother gave birth to Melanie. The department filed a dependency
petition on Melanie’s behalf based on mother’s history of methamphetamine use and
failure to reunify with Mo. and Me. The juvenile court allowed Melanie to remain in
mother’s custody under family maintenance because of mother’s progress in her services.
She completed classes in parenting, neglect and domestic violence. She also continued to
participate in substance abuse counseling and random drug testing. She was reportedly


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very compliant and provided negative drug tests. She admitted, however, to a public
health nurse that she smoked cigarettes, drank alcohol and used methamphetamine during
her pregnancy with Melanie. Mother’s family maintenance plan required her to continue
in substance abuse counseling and randomly drug test.
       In August 2011, mother filed a section 388 petition asking the juvenile court to
place Mo. and Me. with her under family maintenance in light of her progress and strong
relationship with the children. The department supported mother’s request and the court
granted her petition.
       By March 2012, the juvenile court had terminated its jurisdiction over Mo., Me.
and Melanie.
       In February 2013, mother gave birth to Ma. Mother and Ma. tested positive for
amphetamine. Ma. was detained at the hospital and the department filed dependency
petitions as to all four girls alleging mother’s methamphetamine use placed the children
at risk of harm.
       Mother told a social worker she relapsed because she associated with the wrong
people and had a craving to use. In March 2013, she was dropped from her substance
abuse counseling for nonattendance. In early April, she had an appointment to enter drug
treatment but overslept and was denied entry. Ten days later, she showed up “high” for a
visit with the children. In late April 2013, she entered drug treatment but left the same
day.
       In May 2013, the juvenile court conducted a dispositional hearing as to all four
children and ordered mother to participate in counseling for child neglect, parenting and
substance abuse, and submit to random drug testing.2
       In early May 2013, mother entered a drug treatment program but left two days
later. She was scheduled to enter another drug treatment facility approximately three

2      The juvenile court did not order reunification services for Mo., Me. and Melanie’s
father or for Ma.’s alleged father.


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weeks later but did not attend her appointment. During this time, she was testing positive
for methamphetamine.
       In early July 2013, mother entered an inpatient drug treatment program, which she
was expected to complete in early May 2014. She attended all her classes, tested
negative for drugs, and reportedly displayed a responsible and positive attitude toward
treatment. She was expecting her fifth child in March 2014.
       In its report for the six-month review hearing, the department recommended the
juvenile court terminate mother’s reunification services and set a section 366.26 hearing
to consider a permanent plan of adoption. The department reported that mother complied
with her services plan by completing parenting and child neglect counseling and was
meeting her objectives of completing substance abuse counseling and abstaining from
drug use. However, the department considered her overall progress minimal and
insufficient to warrant continuing reunification efforts. In addition, the children were
placed together with a caregiver who wanted to adopt them.
       In late October 2013, while on a six-hour weekend pass from the treatment
facility, mother relapsed. She contacted her social worker to inform her of the incident.
Beverly Rhodes, mother’s substance abuse counselor, told the social worker she was still
willing to work with mother because she admitted her relapse.
       Ms. Rhodes testified for mother at the six-month review hearing in November
2013. She said mother was in a perinatal program where she could remain until May 1,
two months after she delivered her baby. The goal was to give mother time to bond with
her baby, attend groups and self-help support meetings, obtain a sponsor and work with a
counselor. She said mother made “tremendous progress” in drug treatment and accepted
responsibility for her actions. She characterized mother’s participation as “excellent.”
She also said it was not unusual for a person to relapse when outside the safe confines of
the treatment facility and mother responded appropriately by returning to treatment and
admitting she relapsed.


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       Ms. Rhodes further testified that mother was on track to complete the program on
schedule but the children could not live with her at the facility. Ms. Rhodes would
coordinate with another agency to transition mother into outpatient treatment and a sober
living environment after she completed the program.
       Mother’s attorney, as well as the minors’ attorneys, argued the juvenile court
should continue reunification services to the 12-month review hearing given mother’s
substantial progress in treating her drug addiction.
       The juvenile court, however, followed the department’s recommendation and
terminated mother’s reunification services. The court reasoned that mother’s latest
relapse was not isolated, but just one in a series of relapses over several years. Further,
the court did not find any evidence there was a substantial probability the children could
be returned to mother after an additional period of reunification services.
       The juvenile court set a section 366.26 hearing as to all four children. This
petition ensued.
                                      DISCUSSION
       Mother contends there was insufficient evidence to support the juvenile court’s
finding she failed to regularly participate and make substantive progress in her services
plan. Alternatively, she contends the juvenile court erred in finding there was not a
substantial probability the children could be returned to her custody if reunification
services were continued. We disagree.
       “[F]amily preservation is the first priority when dependency proceedings are
commenced. [Citation.]” (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) For that
reason, the juvenile court is required to provide family reunification services when it
removes a child from parental custody. (§ 361.5, subd. (a); but see id., subd. (b).)
However, the duration of family reunification services is not limitless. Further,
expeditious resolution of the dependent child’s status is also a priority, especially where




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infants and toddlers are involved. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166,
175 (M.V.).)
       Section 366.21, subdivision (e) governs the juvenile court’s decision whether to
continue reunification services at the six-month review hearing. Subdivision (e) requires
a special inquiry for children such as mother’s who are not being returned to parental
custody and comprise a sibling group; i.e., two or more siblings removed from parental
custody at the same time, at least one of which was under the age of three on the date of
the initial removal. (§ 361.5, subd. (a)(1)(C).) For such dependent children, the juvenile
court may set a section 366.26 hearing if it “finds by clear and convincing evidence that
the parent failed to participate regularly and make substantive progress in a court-ordered
treatment plan .…” (§ 366.21, subd. (e), 3d par.) The juvenile court must continue
reunification services to the 12-month review hearing, however, if it finds a substantial
probability the children may be returned to parental custody by that time. (Ibid.)3
       Reunification services for a sibling group are limited to 12 months from the date
the children entered foster care. (§ 361.5, subd. (a)(1)(C).) A child is considered to have
entered foster care on the earlier of the date of the jurisdictional hearing or the date that is
60 days after the date on which the child was initially removed from parental custody.
(§ 361.49.) In this case, the children entered foster care on April 8, 2013, 60 days from
the date they were initially removed.
       Mother argues the juvenile court erroneously focused on her history of drug use in
assessing her participation and progress to the virtual exclusion of compelling favorable
evidence she offered at the hearing. Specifically, she points to Beverly Rhodes’
testimony that her participation subsequent to July 2013 was “excellent” and her progress



3      The juvenile court must also continue reunification services under section 366.21,
subdivision (e), paragraph three if it finds the parent was not provided reasonable
services. Mother does not challenge the juvenile court’s reasonable services finding.


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“tremendous” despite her relapse in October. We disagree the juvenile court’s focus was
displaced.
       “The juvenile court has a special responsibility to the child as parens patriae and
must look to the totality of a child’s circumstances when making decisions regarding the
child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) Further, the juvenile court may
consider all relevant evidence in making its findings. (M.V., supra, 167 Cal.App.4th at p.
181.) It alone determines where the weight of the evidence lies. (In re Casey D. (1999)
70 Cal.App.4th 38, 52-53.)
       In this case, substantial evidence supports the juvenile court’s finding mother
failed to regularly participate and make substantive progress in drug treatment. She
resisted drug treatment and continued to use methamphetamine until she entered
treatment in July 2013. During her first weekend pass in October, she relapsed. At that
point, she was approximately five months into a six-month reunification period and three
months into treatment. Considering the many times mother relapsed over the years, the
juvenile court could reasonably conclude she was no closer to recovery.
       Further, the juvenile court could conclude on this evidence that there was not a
substantial probability the children could be returned to mother’s custody by the 12-
month review hearing in April 2014. Even assuming mother continued inpatient
treatment, she would not have completed it by April and the children could not be placed
with her at the treatment facility. Additionally, once mother left the facility, she faced the
challenge of maintaining sobriety without the structure and safety of an inpatient setting
while meeting the demands of a newborn. Given mother’s history of relapse and her
circumstances, there was not a substantial probability the children could be returned to
her custody by April or even within a reasonably foreseeable time thereafter.
       We find no error in the juvenile court’s findings and orders.




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




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