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Michelle E v. the Superior Court of

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 8, 2010

MICHELLE E., PETITIONER,
v.
THE SUPERIOR COURT OF SOLANO COUNTY, RESPONDENT, SOLANO COUNTY DEPT. OF CHILD WELFARE SERVICES, REAL PARTY IN INTEREST.

(Solano County Super. Ct. No. J38734)

The opinion of the court was delivered by: Sepulveda, J.

Michelle E. v. Super. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The juvenile court terminated family reunification services and scheduled a permanency planning hearing for Kristine K., a child who was removed from the family home due to the mother's neglect and substance abuse. (Welf. & Inst. Code, § 366.26.) The mother of the child, Michelle E. (Mother), petitions this court for extraordinary writ review. (Cal. Rules of Court, rule 8.452.) Mother claims there is insufficient evidence to support the court's finding that returning the child to her custody would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. We find substantial evidence supporting the juvenile court's ruling and deny Mother's petition on the merits.

I. facts and procedural history

A. Prior proceedings finding child neglect

Mother has a twenty-year history of drug addiction and child neglect. The first contact between Mother and the Solano County Department of Child Welfare Services (County) occurred in 1990, when Mother's second child was born with exposure to amphetamines. The County filed a petition to assert jurisdiction over the infant (Bryan), and filed a later petition in 1991 concerning Mother's two children (Patrick and Bryan) that alleged physical abuse of Patrick. The children were returned to Mother's care and Mother was given family maintenance services. In 1993, another petition was filed, this one alleging physical abuse of the toddler Bryan, and methamphetamine use. Mother received 18 months of family reunification services but Mother failed to reunify with either of her two children. The children were permanently removed from her custody.

Mother had two more children: Brent, born in 1996, and Kristine, born in 2003, who is the subject of this writ proceeding. In 2004, a child welfare agency in Glenn County filed a petition alleging neglect of Brent and Kristine. Mother had been arrested while driving under the influence of an intoxicant (DUI) with Brent and Kristine in the car. She was charged with DUI and child endangerment and those charges, with other allegations, were the basis for the 2004 petition. Mother received almost 12 months of family reunification services and the children were returned to her custody in 2005. In 2006, Mother gave birth to her fifth child, a boy named Jesse. Mother was 40 years old at the time.

B. The current petition and jurisdictional hearing

On July 19, 2008, Mother was arrested for domestic violence and her children (Brent, Kristine, and Jesse) were taken into protective custody. According to the police report, Mother drove to the residence of her boyfriend (John W., the presumed father of Brent) around 10 p.m. with 5-year old Kristine and 17-month old Jesse in the car. She stopped the car in the street, left the car with her children unattended, walked up to John W., and attacked him. Mother hit and scratched John W.'s face. During the attack, Kristine left the car and ran into the street. The police arrested Mother on charges of domestic violence and child endangerment. Mother later admitted to a County social worker that she had consumed a pint of whiskey, smoked methamphetamines, and taken an opiate pill on the day she attacked John W. Mother also admitted that she drank almost daily, and received methadone to treat a heroin addiction.

A contested jurisdictional hearing was held on October 14, 2008. By that time, an amended petition had been filed on behalf of Kristine and Jesse. Brent was excluded from the petition, and he is not the subject of the proceedings relevant here.*fn1 Mother failed to appear at the jurisdictional hearing but was represented by appointed counsel. The County's jurisdictional report summarized Mother's prior history, some of which is set out above, and documented Mother's repeated substance abuse and child neglect. After considering the report and hearing from witnesses, the court sustained allegations that Mother had a history of substance abuse, that her addiction to alcohol and drugs endangered her children, that the children were at risk of serious emotional damage as a result of domestic violence witnessed by the children, that two of the children's siblings had been removed from home because of Mother's substance abuse and physical abuse, and that prior County intervention did not resolve the family's problems. The domestic violence included not only Mother's 2008 attack upon John W., but also a 2008 attack upon Mother by a prior boyfriend, Michael K., Kristine's presumed father. The court adjudged Kristine and Jesse to be dependents of the court. (Welf. & Inst. Code, § 300, subds. (b), (c), (j).)

At the November 12, 2008 disposition hearing, the court placed the children with their maternal grandmother in Shasta County, granted Mother supervised visitation and family reunification services, and ordered Mother to comply with a case plan and ordered services.*fn2 The case plan required Mother to, among other things, abstain from the use of drugs and alcohol; submit to drug and alcohol testing; participate in counseling to address parenting skills, substance abuse, domestic violence, and personal functioning; and not use corporal punishment. Mother was notified that reunification services could be terminated in six months because the provision of reunification services may be shortened where, as here, one of the children is under three years old on the date of the initial removal, as was Jesse. (Welf. & Inst. Code, § 366.21, subd. (e).)

C. Six-month review hearing

The six-month review hearing was held on April 14, 2009. (Welf. & Inst. Code, § 366.21, subd. (e).) In advance of the hearing, the County filed a status report recommending termination of reunification services to Mother. The County noted that Mother had failed to complete any court ordered services with regard to substance abuse treatment, counseling for domestic violence, parent education classes, or drug tests. A County social worker also noted Mother's hostile attitude when contacted about noncompliance with the case plan. Mother told the social worker, in a telephone message, "bitch[,] I'll call you; don't call me" and "don't show up unexpected to my house." The County social worker reported to the court that Mother "has not made changes towards alleviating the problems that brought her children to the attention of the Court. The primary reasons the Court intervened was [sic] due to [Mother's] substance abuse and incidents of domestic violence with two different individuals. Currently, [Mother] has not participated in any services or demonstrated to this worker that she is sober and can protect herself and her children from future incidents of domestic violence." The County changed its position before the contested review hearing and reached a resolution with Mother in which it offered to provide services to Mother until September 2009.

D. Twelve-month review hearing

The 12-month review hearing was continued from September to December 2009. The County filed a status report recommending termination of reunification services to Mother. The County reported that Mother had physically assaulted her 13-year old son Brent in August 2009, just two months after he returned to her custody. Mother admitted that she "had relapsed for a time and had been under the influence of alcohol" when she assaulted Brent in the front yard, and police were called. Mother was in another physical fight with Brent in October 2009. The County removed Brent from Mother's custody and placed him in foster care. Mother refused drug and alcohol testing several times from August to October 2009, once admitting that the test would be positive so there was no need to test.

By the time of the 12-month review hearing, Jesse had been moved out of the maternal grandmother's home and into a maternal uncle's care. The grandmother found it difficult to care for both children and thus only the older child, six-year old Kristine, remained with the grandmother. Mother's visitation with Kristine was troubled. On a March 2009 visit, Mother brought a plastic cup into the house that smelled of whiskey and then slept in a chair while Kristine played by herself for several hours. In April 2009, Mother fought with the grandmother in front of the children. In June and July 2009, Mother was given weekend custody of her three children (Brent, Kristine, and Jesse) and reported feeling "overwhelm[ed]." In October 2009, Mother was drunk when she came to visit Kristine, and the visit had to be cancelled. The County noted, in its status report, that Mother "continues to struggle with maintaining her sobriety from alcohol." The County concluded that it was not safe for the children to return home and opined that Mother would not make the changes necessary to permit safe return in the coming months. The County urged the court to terminate reunification services and to schedule a permanency planning hearing. The court rejected the recommendation and continued services to Mother.

E. Eighteen-month review hearing

The 18-month review hearing was completed in March 2010. The County again recommended terminating services and scheduling a permanency planning hearing. At the time, Mother was living with John W., the man she assaulted in July 2008 that led to her arrest and the children's detention. Mother's behavior had recently improved--she began substance abuse counseling and drug testing as part of criminal proceedings around December 2009--but the County noted that Mother's "behavior has been erratic over the past six months, and she has not demonstrated a significant period of stability and sobriety." Mother herself told a social worker that she was not sure she could "handle parenting Kristine in addition to Jesse." The County noted its concern that Mother "continues to place blame on others for her relapses and she fails to take full responsibility for her actions. The issues that brought [Mother] to the attention of the Court dealt with her alcoholism and the inability to care safely for her children while intoxicated, and these issues still present themselves after 18 months of services being offered. These problems are the same types that were present 19 years ago when [Mother's] two oldest children were brought to the attention of the Juvenile Court. It seems to be a pattern for [Mother] to struggle with sobriety and resort to physical violence when she is under the influence. [Mother] has not demonstrated that she can maintain a significant period of sobriety with no physical violence in the home." The court found that Mother had made progress and decided to offer an additional period of reunification services. (Welf. & Inst. Code, § 366.22, subd. (b).)

F. Twenty-four-month review hearing and termination of reunification services

A 24-month review hearing was held in August 2010. On this occasion, the court accepted the County's recommendation to terminate reunification services and to set a permanency planning hearing for Kristine. The court rejected a similar recommendation as to Jesse, and indicated its intention to return him to Mother. We are concerned here with Kristine alone.

In recommending termination of services, the County conceded that Mother had been sober since January 2010. But the County observed that Mother "has been grappling with issues of domestic violence and substance abuse for what appears to be close to twenty years, spanning four separate dependency actions and involving five children." The County believed that Mother still presents "a substantial risk of detriment to the safety, protection, and well-being of the children if they were returned" to her. In its July 2010 status report, the County noted that Mother "has been sober for a mere seven months" and has a pattern of intermittent sobriety punctuated by violent relapses that lead to physical abuse of her children. The County questioned "whether [Mother] can maintain her sobriety beyond graduation from her treatment program" given a history of prior treatment without long-term success.

The County also noted problems with Mother's monthly visits with Kristine. In April 2010, Mother's six-hour unsupervised visit "destablize[d]" Kristine, according to the child's therapist. The therapist reported that Kristine "is experiencing a serious conflict with her mother," and the child's "vulnerability and age put her in high risk to have much contact with her mother." The therapist's concerns led the County to require that the next visit be supervised. The social worker who supervised the May 2010 visit remarked on Mother's "elevated tone of voice" and apparent frustration during the visit. At one point, when Kristine continued to walk ahead of Mother rather than at her side, Mother grabbed Kristine's ponytail "as though she wanted to pull it" but recovered herself and released the child's hair when Mother recalled the social worker's presence. On that same visit, Mother told Kristine during a drive to the park: "You're lucky the CPS worker is in the car, or I'd kill you."

In May 2010, Kristine told the social worker that she did not want to be returned to Mother. Kristine reportedly said "that she does not feel safe with her mother and that she is concerned that her mother will drink again." In June 2010, Mother told the social worker that she wanted to visit only one child at a time so she does not " 'stress' " her sobriety. According to the social worker, Mother has said she is not ready to have all her children returned to her. At the review hearing, the children's appointed counsel argued that the children did not feel safe with their Mother, were not safe with her, and should not be returned to her custody. The children's counsel urged the court to schedule a permanency planning hearing.

The court did so as to Kristine, terminating family reunification services and scheduling a permanency planning hearing for December 21, 2010. The court noted that Mother "ha[d] shown irritation during visits with Kristine" and was unable to care for both Kristine and Jesse. The court found that returning Kristine to Mother would create a substantial risk of detriment to the child's safety, protection, and physical or emotional well-being.

Ii. discussion

Mother challenges the juvenile court's finding that returning Kristine to her care would create a substantial risk of detriment to the child. We review the juvenile court's finding of detriment for substantial evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Substantial evidence supports the juvenile court's determination. Mother's progress in treating her substance abuse is commendable but her long-term recovery is fragile and uncertain. Mother admitted to a social worker that she is not ready to have all her children returned to her and that caring for both Jesse and Kristine would "stress" her sobriety. Kristine does not feel safe with Mother and even short visits with Mother unsettle the child emotionally. Mother's behavior toward Kristine is sometimes hostile, as witnessed by a social worker on a supervised visit when Mother threatened Kristine and later reached for Kristine's hair to pull it. Kristine's therapist and appointed counsel reported that the child is afraid of Mother and that returning Kristine to Mother would be emotionally, and perhaps physically, damaging. The facts, set out in detail above, fully support the trial court's determination that returning Kristine to Mother would create a substantial risk of detriment to the child.

Iii. disposition

The petition for extraordinary writ review is denied on the merits. (Welf. & Inst. Code, § 366.36, subds. (l)(1)(C), (l)(4)(B).) Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).)

We concur: Ruvolo, P.J. Reardon, J.


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