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M. C v. the Superior Court of Butte County

March 1, 2012


(Super. Ct. Nos. J34860, J35929)

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

M.C. v. Super. Ct. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner M.C., mother of the minors D. and C., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the disposition hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further undesignated section references are to this code). Petitioner also requests a stay of proceedings in the respondent court. We shall deny the petition, rendering the request for stay moot.


Two-year-old D. was detained in July 2009 based on her parents' substance abuse problems. Petitioner admitted she recently used methamphetamine and had a long history of substance abuse. The court ordered family reunification services for petitioner. By the review hearing in September 2010, petitioner had made significant progress and it was anticipated that the minor would be returned with family maintenance services within the next few months. Petitioner completed her case plan and D. was returned to her physical custody. In December 2010 the court adopted a family maintenance case plan with continued supervision by the social worker.

In January 2011 the court continued family maintenance services. Petitioner was due to deliver her second child in March 2011.

In June 2011 the social worker filed a nondetaining petition for three-month-old C. because petitioner had failed to attend counseling for three weeks in January and had two positive drug tests for marijuana, one in May and another in June of 2011. A review report in D.'s case in July 2011 recommended continuing family maintenance services. The report indicated petitioner believed her relapse was triggered by medications she received after C.'s birth. Petitioner admitted she had been using drugs for several months and falsified her drug tests to avoid detection. By the review hearing, petitioner was in custody for being drunk in public.

A supplemental petition, pursuant to section 387, was filed to remove D. and a subsequent petition, pursuant to section 342, was filed to remove C. from petitioner's home. The petitions alleged petitioner's January 2011 lapse in services, her positive drug tests in May and June, and her arrest in July 2011 for being drunk in public, which was also a violation of her felony probation and resulted in jail time. Neither petitioner nor her relatives informed the social worker of the arrest and incarceration. Their plan was to have relatives care for the minors and return them to petitioner when she was released from custody. The court sustained the petitions in September 2011.

The disposition report recommended denial of further services to petitioner for D. because those services exceeded the 18-month limit and denial of services for C. pursuant to section 361.5, subdivision (b)(10). The report stated that when petitioner was arrested she was causing a disturbance with the minors present and her blood-alcohol level was .21 percent. On her release from custody, petitioner entered residential treatment as a condition of probation. At the time of the report, petitioner had consistently tested negative for drugs, was attending programs, and had embraced community-based support groups. She had recently completed another parenting class and had enrolled in a course to earn her GED. Petitioner believed she needed to stay in her current program for one to five years to achieve success in sobriety. The report concluded that, while petitioner's current efforts were commendable, her lack of insight and return to polysubstance abuse as well as statutory constraints compelled a recommendation to deny further services and set a section 366.26 hearing.

At the hearing, the court heard testimony and argument on the applicability of the limitations and bypass provisions of section 361.5 and California Rules of Court, rule 5.565(f). The court first considered D.'s case and, after reviewing the evidence, concluded there was no additional time for services and it was not in the minor's best interest to return her to petitioner with family maintenance services because petitioner's lack of participation and progress would create a substantial risk of detriment to D. if she were returned home. The court terminated services and set a section 366.26 hearing.

The court then addressed C.'s case, finding that petitioner failed to reunify with D. and had not made reasonable efforts to treat problems which led D.'s removal as evidenced by D.'s redetention. The court found the bypass provision of section 361.5, subdivision (b)(10) applied and there was no clear and convincing evidence that ...

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