Constance K. v. Superior Court
| Decision Date | 18 February 1998 |
| Docket Number | No. B115199,B115199 |
| Parties | , 98 Cal. Daily Op. Serv. 1199, 98 Daily Journal D.A.R. 1626 CONSTANCE K., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
Law Offices of Randall Pacheco, Monterey Park, and Carolyn Kemper, Los Angeles, Lisa K. Rozzano, Monterey Park, for Petitioner.
No appearance on behalf of Respondent.
DeWitt W. Clinton, County Counsel, Jill Regal and Kim D. Kedeshian, Monterey Park, for Real Party in Interest.
In this dependency extraordinary writ proceeding brought pursuant to Rule 39.1B of the California Rules of Court, we confront the recurring and sometimes difficult issue of what is the appropriate ruling at a hearing pursuant to Welfare and Institutions Code section 366.22, subdivision (a) 1 when a parent has largely complied with the reunification plan yet nonconclusory reports prepared by responsible professionals indicate the return of a minor, or as in this case three minors, would create a substantial risk of detriment to the children. Because the reports in the present case are not merely written in a conclusory fashion and they are corroborated by specific acts of conduct on the part of the mother indicative of her inability to parent and protect the children, we conclude the present petition must be denied. In so concluding, we address the difference between the present proceeding and two types of cases discussed by other divisions of the Court of Appeal. In so ruling, we conclude the present proceeding is different from the "extreme" cases synthesized by Associate Justice Elizabeth A. Baron in the decision of In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068, 67 Cal.Rptr.2d 389, where appellate courts found trial judges abused discretion at a section 366.22 proceeding in setting a matter for a section 366.26 hearing to determine the permanent plan. Further, we conclude the present case is different from the situation discussed by Presiding Justice David G. Sills in the case of Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1747-1742, 53 Cal.Rptr.2d 687 where conclusory reports which find no corroboration in the conduct of the parent are the sole basis for an order pursuant to section 366.22 setting a dependency proceeding for a permanency planning hearing as contemplated by section 366.26. Accordingly, we deny the petition for writ of mandate.
The petition was filed on July 26, 1994, by the Los Angeles County Department of Children and Family Services (the department). At the time the petition was filed, there were three minors named in the petition, Tara, Jynifer, and Randall. 2 The petition alleged Randall had been born drug dependent and the various parents had histories of illicit substance abuse. Randall, Jynifer, and Tara were taken into custody on July 24, 1994. The detention reports indicated the following. Randall was born and tested positive for opiates and methamphetamine. Randall was "not eating with a fast heart rate and fast respiration." By 1994, the mother had given birth to three other children other than Jynifer, Tara, and Randall. The mother had little knowledge as to the other three children other than their whereabouts. The mother was very remorseful and expressed "sincere love and concern for" Randall, Jynifer, and Tara. Jynifer and Tara indicated they wanted to remain with their mother.
The detention report prepared for September 13, 1994, indicated that the mother had a lengthy history of drug abuse which included methamphetamine use the day before Randall was born. The mother stated two of her older children, Benjamin and Joy, were detained because her residence was in disarray. Alex C., Tara and Jynifer's father, was on parole as a result of a methamphetamine sales conviction. The report continued: Prior to the detention of the minors, the mother had dropped out of a program at Tarzana Hospital. Both Jynifer and Tara enjoyed being with their mother.
On November 28, 1994, a report was prepared in connection with the results of the unsuccessful extended home visit of Tara and Jynifer. On September 27, 1994, the mother was granted a 60 day visit with Tara and Jynifer. During the extended visit, the mother did not comply with the case plan including positive drug tests and not participating appropriately in treatment programs. As a result, on November 11, 1994, Jynifer and Tara were placed again in foster care according to reports prepared by the agency placing the two minors. Tara and Jynifer were with the mother for 45 days before returning to the day-to-day custody of the department.
On January 11, 1995, a department report was filed which stated the foster care provider was decertified and the children were returned to the department's custody. The social worker recommended that there be no further contact between the former foster mother who was "decertified" and the minors.
On March 28, 1995, a case plan update was filed. It indicated the mother had been terminated from her drug treatment program in February 1995. Further, she had tested positive for drugs. The mother was in agreement with the department's assessments concerning Jynifer and Tara. The mother agreed she needed to comply with the case plan.
On July 17, 1995, according to a detention report, Kyrie, the mother's seventh child, born on July 15, 1995, was detained. The infant tested positive for alcohol. The mother tested positive for methamphetamines. By this time, in July 1995, the current foster parents were caring for Tara and Jynifer. Kyrie was placed with the foster parents who were also caring for Tara and Jynifer.
A written case plan update was filed on September 26, 1995. It related: the mother was not in compliance with the case plan; Tara and Jynifer's father, Alex C., was not in compliance with the case plan; the mother had just entered a live-in program; and if she completed the program, reunification could become a realistic prospect. Tara and Jynifer had adapted well in the foster home. The foster parents enjoyed Tara, Jynifer, and Kyrie. The mother indicated she wanted her children returned. Attached to the written case plan update filed on September 26, 1995, were foster care agency reports as to Tara and Jynifer. The reports noted the two children were doing well in the foster parents' care.
A report prepared for January 24, 1996, indicated the mother remained in a live-in program. A social worker took the minors to visit the mother twice a month. Alex C., Tara and Jynifer's father, continued to fail to comply with the case plan. Further, the report noted that the 18 month period for reunification had expired.
A report prepared for March 26, 1996, indicated the mother had been enrolled in a residential treatment program called Patterns since September 11, 1995. She had been alcohol and drug free since entering Patterns. Also, the mother was participating in the various drug and counseling programs. The report contained evidence of negative drug tests. The report also indicated that Kyrie's father, Eric C., had just been released from prison and was on parole. Kyrie continued to suffer physical effects consistent with having been exposed to drugs prior to birth. The quarterly reports prepared by the foster agency indicated the minors were doing well in placement. The report regarding Tara noted: "Tara also enjoys her relationship with [the foster mother], and has expressed her desire to stay with the [foster parents] to [the foster mother] also stating that she has to go with her mom when the time comes because that's what her mom wants." The agency social worker recommended continued placement with the foster parents until the mother could care for the minors on a consistent basis.
On May 9, 1996, a case plan update was filed. It stated that on April 29, 1996, the mother had been discharged from her treatment program at Patterns. The mother's counselor stated: The mother then contacted the social worker. The mother only gave the social worker a telephone number and a room number. The report noted that the minors had "been in the DCFS system over 18 months and there is no guarantee the mother will be able to parent or provide for her children." The mother had visited the children on only one occasion between January 24, 1996, and the preparation of the May 9, 1996, report. The May 9, 1996, report concluded, "It appears mother is reverting back to old ways and making choices that are not in her or her children's best interest." Further, the May 9, 1996, report, which contained an adoption assessment, recommended the minors be...
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