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Name: Sarah K. v. Superior Court
Case #: A165607
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 01/17/2023
Subsequent History: DEPUBLISHED on 4/12/2023 (S278324)

Substantial evidence supported the setting of a section 366.26 hearing despite Mother’s progress in reunification services where she had a history of drug use and relapse, a prior dependency case, and the minor had grown attached to her foster family. Although the present case was initiated due to domestic violence, Mother had a history of substance abuse and prior dependency cases. Family maintenance services were unsuccessful. Following the minor’s removal pursuant to a section 387 petition, Mother engaged in substance abuse treatment. Between the six and twelve-month review hearings, Mother struggled with her sobriety. At the twelve-month review hearing, the juvenile court found Mother had made adequate progress and extended services an additional six months. Mother continued to engage in outpatient substance abuse treatment. Following a contested 18-month review hearing, the juvenile court terminated services and set a section 366.26 hearing. The juvenile court observed that the minor had been in foster care for two years, would soon be four years old, and disrupting her bond with the current foster family would have long term serious consequences. Mother petitioned for extraordinary relief and the Court of Appeal denied the writ. At the 18-month review hearing the juvenile court must return the child to the custody of the parent unless it determines that return of the child would create a substantial risk of detriment to the child’s physical or emotional well-being. In making its determination of detriment, the court may consider whether changing custody will be detrimental because severing a positive loving relationship with the foster family will cause serious, long-term harm. Here, the juvenile court’s finding that custody would pose a substantial risk to the minor was supported by substantial evidence because of Mother’s history of drug use and relapse, the fact that this was her second dependency proceeding, and the long-term emotional consequences to the minor if her attachment to her current foster family was broken. [Editor’s Note: Justice Stewart wrote a lengthy dissenting opinion concluding that the evidence did not support a finding that Mother currently posed a substantial danger to the minor. At the 12-month review hearing the juvenile court found that Mother was likely to reunify with the minor by the 18-month hearing. Mother then remained clean and sober and fully engaged in outpatient treatment. The goal of family preservation is an empty promise if parents making a concerted, genuine effort to battle serious drug addiction pose a substantial risk to their children based on their history of drug addiction alone or even on the fact that they have relapsed. There was insufficient evidence that the minor’s bond with her foster family would cause long term serious consequences and writ relief is warranted.]