Kimberly H. v. Superior Court

Opinion

WORK, J. In July 1999, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition as to eight-month-old Isaiah C., alleging there was a substantial risk that he would suffer serious physical harm or illness as a result of Kimberly H.’s failure to [69]provide the necessities of life. (Welf. & Inst. Code1 § 300, subd. (b).) The petition specifically alleged Kimberly left Isaiah with a relative, saying she would return the next day. Almost four months later, the relative contacted the Agency when she was no longer willing to care for Isaiah, having been unable to obtain medical aid for the chronically ill child.

Kimberly’s history includes giving birth to two children who tested positive for methamphetamine with whom she failed to reunify. She has an extensive criminal record including robbery, auto theft, being under the influence of a controlled substance and prostitution. Kimberly was incarcerated at the time the petition was filed.

The court denied reunification services because Kimberly had failed to reunify with Isaiah’s siblings and due to her chronic drug use history and failure to complete earlier treatment programs. (§ 361.5, subd. (b)(10), (12).) The court, however, ordered reunification services for the father, who was caring for a nondependent sibling.

At the time of the six-month review hearing in April 2000, the father was no longer visiting or participating in reunification services. The mother remained incarcerated with an anticipated release date of either the end of April or June 2000. She reported she had participated in parenting classes and drug treatment services while in prison and had arranged to enter a treatment program upon her release.

Kimberly requested that a contested hearing be set on the issue of substantial probability of return by the 12-month date. The court denied the request, concluded there was no substantial probability the child would be returned to the father within the next six months, and set the matter for a section 366.26 hearing. The court indicated a section 388 petition on Kimberly’s behalf might be “appropriate at some point in the future.”

Kimberly contends the court erred in denying her a contested hearing on the substantial probability of return. She seeks review by filing a petition for extraordinary relief. (§ 366.26, subd. (/); Cal. Rules of Court, rule 39.IB.) This court issued an order to show cause, offered oral argument, which was declined, and now reviews the merits of her contentions.