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Martha V. v. Superior Court of Fresno County10/26/2005
THE COURT
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son B. A. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
Pursuant to a dependency petition filed in December 2004, eight-month-old B. A. was removed from petitioner's custody while petitioner was in reunification with B. A.'s sister R. and brother B. B. was removed from petitioner's custody in January 2004 because petitioner was medically neglecting him and R. was removed from petitioner's custody in July 2004 because petitioner was not complying with court-ordered services and exhibiting signs of depression, which interfered with her ability to properly care for R.
It was petitioner's continuing noncompliance that prompted the Fresno County Department of Children and Family Services (department) to file a dependency petition on B. A.'s behalf. At the dispositional hearing on March 8, 2005, the juvenile court ordered a plan of reunification identical to the ones ordered for R. and B.; i.e., successful completion of courses in parenting and domestic violence and completion of a mental health evaluation and any recommended therapeutic treatment. In addition, the court ordered petitioner to submit to random drug testing and set B. A.'s six-month review hearing for June 2, 2005, and B.'s section 366.26 hearing for July 7, 2005. On May 3, 2005, the juvenile court terminated reunification services as to R. and set the section 366.26 hearing for September 13, 2005. Petitioner challenged both setting orders by extraordinary writ petitions, which this court denied.
In its six-month status review with respect to B. A., the department concluded petitioner failed to regularly participate in her case plan and made minimal progress toward achieving her case plan objectives despite having completed a domestic violence program on May 12, 2005, and a parenting program on June 23, 2005. The department also reported that petitioner completed a mental health assessment in February 2004 and was referred for therapy but delayed initiating therapy until August 2004 because she was pregnant with B. A. and ordered on bed rest. In a letter to the caseworker dated April 29, 2005, petitioner's therapist (therapist) reported petitioner attended 13 group and 5 individual therapy sessions but missed 15 group sessions and 11 individual therapy sessions. The therapist concluded petitioner made minimal progress and had not demonstrated motivation to change her lifestyle.
The department further reported that, after petitioner enrolled in the drug testing program in February 2004, she failed to test 80 times, tested negative 35 times and tested positive for methamphetamine on January 26 and March 4, 2005. As a result, she was referred for intensive outpatient drug treatment which she began in May 2005. Her participation in drug treatment was reportedly "fair."
On June 29, 2005, the six-month review hearing was confirmed for trial on July 14, 2005. On July 13, 2005, petitioner's therapist provided an updated report on petitioner's progress in individual and group therapy. The therapist reported that petitioner continued to miss sessions and reiterated that petitioner made minimal progress and improvement. The therapist also made the following statement which is foundational to the issue petitioner raises on appeal:
"Although [petitioner's] depression and co-dependency have interfered with normal cognitive processing, her primary deficit appears to be a low level of intellectual functioning and i
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