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K.C. v. Superior Court of Trinity County

March 18, 2010


ORIGINAL PROCEEDINGS: Petition for Writ of Mandate and Request for Stay. James P. Woodward, Judge. Writ denied. (Super. Ct. No. 09JU0048).

The opinion of the court was delivered by: Sims, Acting P.J.


Petitioner K.C., mother of the minor, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the disposition hearing which denied reunification services and set a Welfare and Institutions Code section 366.26 hearing (undesignated section references are to the Welfare and Institutions Code). Petitioner argues the court abused its discretion in denying her services. We shall deny the petition and vacate the previously ordered stay of the juvenile court proceedings.


The newborn minor was removed from petitioner's custody in September 2009. The minor was at risk of neglect from petitioner, who had a history of addiction and had failed to reunify with the minor's half siblings. The minor was also at risk of sexual abuse because the father had a conviction for violation of Penal Code section 288, subdivision (a), involving a five-year-old child. Petitioner was aware of the father's conviction but did not appear to recognize the danger he posed to the minor. The mother had been counseled not to smoke while pregnant with the minor due to the negative effects her smoking had on a half sibling, but petitioner did not stop smoking.

According to reports, a half sibling born in 2003 had complications due to withdrawal from caffeine and nicotine. Petitioner's continued abuse of nicotine was a factor which led to her neglect of the half siblings and to termination of her parental rights in 2005. Despite warnings to petitioner about smoking and efforts to assist her in quitting, this minor was also born testing positive for nicotine. For several months prior to the minor's birth, service providers counseled petitioner on the effects of smoking on her fetus and on stopping smoking, and as early as May 2009 petitioner was asked to participate in Alcohol and Other Drug Services (AODS) to address her nicotine addiction. Petitioner was observed smoking during pregnancy; she provided positive tests for nicotine in July and August 2009 but minimized the effects of her smoking on the minor. Petitioner dismissed the importance of her ongoing use of nicotine, noting she had reduced her consumption and was smoking only organic tobacco. Petitioner insisted she did not need the AODS programs but continued to test positive for nicotine.

In the half siblings' case, evidence of petitioner's neglect of her children was based, in part, on her behavior which put her own needs, including smoking, ahead of their needs, i.e., she left the infant half sibling unattended to go outside and smoke, neglecting the infant's care, and ignored the infant's distress to attend to her own comfort first. A psychological evaluation in the prior case concluded petitioner was caffeine and nicotine dependent. The evaluation noted that petitioner rationalized her neglect and laziness and resisted taking responsibility for herself or the half siblings.

Following the conclusion of the half siblings' case in the termination of her parental rights, petitioner continued to abuse nicotine despite ongoing efforts by service providers resulting in the minor's positive test for nicotine at birth. Additionally, the father's probation officer did not consider petitioner a suitable responsible adult to supervise the father's contact with children because she had a history of neglecting her children and of being molested as a child yet chose the father as a partner.

According to the disposition report, petitioner has had years of therapy and parenting services but has not been able to overcome her lack of motivation or to increase her skills and shows little benefit from either therapy or parenting classes. In May 2009, petitioner and the father agreed to do services, but did not contact the social worker, sign a voluntary plan, or provide verification of what they did on their own. Both parents were resistant to services. The minor will continue to need monitoring for delays due to nicotine exposure but is currently not showing any difficulties.

At the jurisdiction hearing in November 2009, the social worker testified petitioner's fingers and teeth were always stained from tobacco. The social worker agreed that quitting smoking was not a service objective of the previous dependency, but smoking was related to lack of supervision of the half siblings, which supported a conclusion that she was not taking responsibility for her actions as required. Part of the concern in the prior case was that the minors suffered from reactive attachment disorder due to petitioner's dependence on caffeine and nicotine which took precedence over child care. The social worker testified petitioner did not believe she had a problem with smoking in the prior case and continued to smoke while pregnant with the minor, although the issue was discussed with her frequently.

Petitioner testified she did smoke at least five or six hand-rolled cigarettes a day. Petitioner further testified she cut down smoking when she knew she was pregnant. She stated she had discussed quitting with her home worker and had gotten a kit which she used with some success but relapsed. Petitioner was aware the minor's father was a sex offender and was in a 12-week chaperone class, which she started before the minor was born, to teach her how to make sure nothing could happen to a child living with them.

The court sustained the petition, noting that petitioner had a long history of nicotine abuse, was made aware of the dangers of smoking, and chose to do nothing about it. The court cited evidence of petitioner's tobacco stained fingers, the minor's positive test for nicotine at birth, and petitioner's ongoing positive tests for nicotine as indicative of failure to protect the minor and noted it was consistent with the prior psychological evaluation that petitioner rejected assistance and lacked commitment to her children.

At disposition petitioner testified she tried to contact the social worker when she found she was pregnant because she was not sure she wanted to continue with the pregnancy if it was going to result in another dependency proceeding. She did try to quit smoking by reducing the size of her hand-rolled cigarettes and by getting information on quitting. She also got into a women's therapy group to deal with stress. Petitioner did not go to AODS because her group therapy facilitator did not know if they would accept her and AODS clients she talked to thought "they would probably laugh at someone that came in there just for an [sic] nicotine addiction." The court denied services to petitioner finding she came within the provisions of section 361.5, subdivision (b)(10) and (11). The court found petitioner rejected treatment for nicotine addiction in the prior dependency and while pregnant with the minor. The court stated petitioner's behavior said a lot about her willingness to ...

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