Georgeanne G. v. Superior Court of L. A. Cnty.

53 Cal.App.5th 856

267 Cal.Rptr.3d 834

GEORGEANNE G., Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Los Angeles County Department of Children and Family Services et al., Real Parties in Interest.

B301629

Court of Appeal, Second District, Division 7, California.

Filed August 18, 2020

Keiter Appellate Law and Mitchell Keiter for Petitioner.

No appearance by Respondent.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Real Party in Interest.

Children's Law Center of Los Angeles-1 and Margaret K. Lee for Lucas H., minor.

PERLUSS, P. J.

Georgeanne G., the mother of four-year-old Lucas H., seeks extraordinary writ relief ( Welf. & Inst. Code, § 366.26, subd. (l ) ;¹ Cal. Rules of Court, rule 8.452 ) from the juvenile court's order at the 18-month permanency review hearing (§ 366.22) terminating her reunification services and setting a hearing pursuant to section 366.26 to consider implementation of a permanent plan of adoption for her son. Georgeanne argues her purported lack of insight into the problem that led to Lucas's removal from her custody is not properly considered in assessing whether his return to her home would create a substantial risk of detriment to the child's safety, protection or physical or emotional well-being and, therefore, is not a proper ground for terminating reunification services and setting a section 366.26 hearing. Although we disagree with Georgeanne's contention that the issue of parental insight may not be considered by the juvenile court, we agree the Los Angeles County Department of Children and Family Services (Department) failed to present sufficient evidence Lucas would be at substantial risk of harm if returned to Georgeanne's home. We grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petitions and Lucas's Removal from Georgeanne

In December 2017 Georgeanne and Sean H., Lucas's presumed father, pleaded no contest to an amended petition pursuant to section 300, subdivision (b)(1), which alleged Georgeanne and Sean had a history of domestic violence and engaging in altercations in the presence of the child. The petition identified a specific incident when Sean, who had previously been convicted of inflicting corporal injury on a spouse or cohabitant, struck Georgeanne in the face and alleged that the violent altercation endangered Lucas's physical health and safety and placed him at risk of serious physical harm.² The petition further alleged Georgeanne had an unresolved history of substance use (marijuana) that rendered her incapable of providing regular care for the child. Lucas was placed with Georgeanne under the supervision of the Department. Family maintenance services for Georgeanne included programming for domestic violence victims, parenting classes, individual counseling and drug testing. The court also ordered that Georgeanne not permit any contact between Lucas and her current male companion, Arthur A., who had previously been convicted of the forcible rape of his ex-wife.³

In May 2018 the court sustained a supplemental petition (§ 387), filed in January 2018, alleging Georgeanne continued to abuse illicit substances including marijuana and had allowed Arthur A. to reside in her home with unlimited access to Lucas in violation of the court's prior order. Lucas was removed from Georgeanne's custody and ordered suitably placed with his paternal grandparents. Family reunification services were ordered, including a full drug/alcohol program with aftercare, domestic violence counseling and parenting classes. Georgeanne appealed. We affirmed the juvenile court's findings and orders. ( In re Lucas H. (June 11, 2019, B290051, 2019 WL 2432071) [nonpub. opn.].)⁴

2. Georgeanne's Efforts at Reunification

In a November 2018 status review report for the six-month section 366.21, subdivision (e), review hearing, the Department advised the court Georgeanne had tested positive for marijuana at each of nine drug tests she had taken and failed to appear for 13 other tests. Georgeanne, who said her marijuana use was medically necessary but had not provided documentation to support this claim, was discharged from her drug program for lack of attendance and for missed and positive drug tests. Georgeanne acknowledged she continued to live with Arthur and confirmed she was pregnant with their child. She tested positive for marijuana throughout her pregnancy.⁵

In a January 16, 2019 last minute information report for the continued six-month review hearing, the Department stated Georgeanne had been minimizing her marijuana use and had begun using alternate pain management resources. Georgeanne requested additional time to begin a substance abuse program after the birth of her son Liam and said she was willing to comply with court orders and to begin all court-ordered programs. At the hearing on January 18, 2019 the court found Georgeanne's progress toward alleviating or mitigating the causes necessitating placement was "minimal" and ordered continuation of her reunification services. The court found Sean's progress was "nonexistent" and terminated his reunification services.

In its initial report for the 12-month review hearing (§ 366.21, subd. (f)) in March 2019, the Department explained that Georgeanne had refused to enroll in any of the programs ordered in her case plan and would not comply with the court order for substance abuse treatment. She continued to test positive for marijuana and insisted she needed to use it to manage the pain associated with gastritis. According to the Department, "The mother seems to have a minimal perception to her needs to [c]omply with Court orders to enroll and participate in Substance abuse, Parent education, Individual therapy and Domestic violence. The mother stated that she has informal support through her boyfriend Arthur [A.] and his family and that she will continue to use marijuana for pain management at this time." As a result, the Department wrote, she "has minimized the possible safety risks that child Lucas [H.] may endure in her care ... [and] has failed to gain insight as to how her Substance Abuse affects her child." The Department recommended terminating Georgeanne's reunification services.

The hearing was continued when Georgeanne asked for a contest. In an interim review report prior to the continued hearing, the Department advised the court Georgeanne was then enrolled in a substance abuse program and had several negative and several positive tests for marijuana. She was also participating in a support group for victims of domestic violence. The Department reported that a concurrent planning assessment had been completed for Lucas and his paternal grandparents, with whom he had been living, who were identified as prospective adoptive parents. The Department again recommended termination of Georgeanne's reunification services.

After two more continuances the contested 12-month review hearing was held on June 12, 2019. The court found Georgeanne's progress toward alleviating the causes for Lucas's placement was satisfactory, but not substantial, and ordered reunification services continued for her over the objection of the Department and Lucas's counsel. The court set a contested permanency review hearing (§ 366.22) for September 17, 2019.

3. The 18-month Permanency Review Hearing

In its report for the 18-month permanency review hearing the Department stated Georgeanne had maintained a strong relationship and bond with Lucas, "and during monitored visitation the mother has provided the child Lucas, age appropriate activities, meals, show[s] affection and continues to be engaging." In addition, Georgeanne had completed all aspects of her case plan, including a domestic violence counseling program.⁶ Nonetheless, the Department expressed concern about Georgeanne's lack of insight as to the need for cooperation with the Department's case worker and the importance of the court's no-contact order regarding Arthur in light of Georgeanne's acknowledgement that she and Arthur continued to reside together and have an intimate relationship. Specifically, Georgeanne's case worker wrote, "[T]he mother has failed to demonstrate to this CSW what she has learned in her Parent education classes; [f]urthermore, the mother seems to have a minimal perception to her needs to comply with Court orders when it comes to fully comprehend the inherent dangers associated with family violence, drug abuse, and allowing person(s) with violent criminal backgrounds to have access to her child." The report continued, "The mother's failure to acknowledge, recognize or accept how some of her neglectful and/or abusive behaviors can present a risk and detriment to child suggests that the mother has been unconvinced of the risks they pose to child. Therefore, it would be detrimental for the child Lucas to be returned to mother at this time." The Department recommended the court terminate reunification services for Georgeanne and set a section 366.26 hearing to determine a permanent plan of adoption for Lucas.⁷

Georgeanne was the only witness at the permanency review hearing. She testified she had not used marijuana since January 2019 and had tested clean 19 times since then. She explained her four no-shows were related to transportation problems. She also completed two parenting classes although the court had ordered only one, as well as domestic violence counseling. Asked what her ideal plan for Lucas was, Georgeanne explained she would like the order prohibiting contact between Lucas and Arthur lifted so that she, Arthur, Lucas, Liam and the second child she was then expecting with Arthur could all live together as a family. Acknowledging she had lived with Arthur for the past two years and was financially dependent on him, Georgeanne nonetheless testified that, if Lucas was released to her and the no-contact order were to remain in effect, she would abide by it...