Opinion
B193278
12-8-2006
GILBERT P., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Victoria Doherty for Petitioner. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.
Petitioner Gilbert P., the father of Chantel P., seeks extraordinary writ review of a juvenile court order terminating his reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, § 366.26; Cal. Rules of Court, rule 38.1.) We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL HISTORY AND STATEMENT OF FACTS
On October 20, 2005, the Los Angeles County Department of Children Services (DCFS) filed a dependency petition on behalf of Chantel (born Oct. 2005), alleging that her mother had a long-standing history of illicit drug abuse, was a current user of illicit drugs, used drugs during her pregnancy with Chantel and tested positive for illicit drugs just prior to Chantels birth. It was also alleged that Chantels sibling, Sophia P., was a current dependent of the juvenile court as a result of her mothers drug use. With respect to petitioner, it was alleged he had a long-standing history of substance abuse, had a drug-related criminal history, which included possession of drugs and being under the influence of a controlled substance. It was also alleged petitioner was a registered controlled substance offender.
Chantels mother is not a party to this writ proceeding.
Detention Hearing. A detention hearing was held on October 20, 2005. Although petitioner attended the morning session, he left before the case was called in the afternoon. DCFS reported that Chantel was still in the hospital. Although petitioner and Chantels mother remained married and had been living together before the childs birth, petitioner claimed he did not know the mother had been abusing drugs until she told him so just prior to Chantels birth. Petitioner stated he was willing to cooperate with DCFS and claimed he wanted to reunite with Chantel.
At the conclusion of the detention hearing, the juvenile court ordered Chantel placed in foster care and granted petitioner monitored visitation. Petitioner was directed to participate in DCFS-approved drug and individual counseling and to complete a parenting education course.
Contested Jurisdiction Hearing. A contested jurisdiction hearing was held on November 14, 2005. In a report prepared for the hearing, DCFS advised that Chantel had tested positive at birth for opiates. Petitioner told the DCFS social worker that he had been "clean and sober" for seven years and had worked in the drug rehabilitation industry for several years. He blamed the mothers drug abuse on the maternal grandmother. Although he was not involved in Sophia P.s dependency case, petitioner claimed he had been visiting the child regularly. The social worker had no information that these visits had taken place.
Petitioner did not participate in Sophia P.s dependency case until the 12-month status review hearing, which was held in October 2005.
Sophia had been placed in the care of her maternal grandmother. Petitioner claimed the mother had been facilitating his visits with Sophia, which would take place at the paternal grandmothers home.
Petitioner believed the juvenile court would allow him to have custody of Chantel because there was no sustained petition against him in Sophias case. Petitioner planned to stay with Chantels mother to assist her in her post-delivery recovery. However, they did not have a place to live and he and the mother were staying with a friend. In addition, petitioner could not work due to an injury that he incurred on the fourth day of his most recent job.
The juvenile court sustained the allegations contained within the petition. DCFS was directed to provide petitioner with family reunification services. Petitioner was ordered to participate in DCFS-approved drug counseling with random testing and individual counseling to address all case issues. He was also required to complete a parenting education course. Petitioner was granted monitored visitation. A six-month status review hearing was set for May 15, 2006.
The court denied family reunification services to the mother.
Six-Month Status Review Hearing. The section 366.21, subdivision (e) hearing commenced on May 15, 2006. Petitioner did not attend. The juvenile court continued the matter to June 14, 2006, and directed DCFS to provide a supplemental report addressing what reasonable reunification efforts had been made to reunify petitioner and Chantel.
On June 14, 2006, the juvenile court reviewed the supplemental report. Contained therein was the information that following the November 14, 2005 detention hearing, the DCFS social worker spent 45 minutes with petitioner discussing the court-ordered case plan. The social worker explained each case plan requirement and told petitioner it was his responsibility to furnish proof of compliance. Petitioner told the social worker he intended to go into a drug rehabilitation program so that he could satisfy the requirements of the court-ordered plan. On November 17, 2005, the social worker mailed a list of referrals to petitioner. The social worker did not hear from petitioner until April 28, 2006, when he left a message stating that in three days he would be admitted to a drug rehabilitation program at Tarzana Treatment Centers (Tarzana). Later, he called back to verify that he had been admitted to the program. After several attempts, the social worker spoke with a representative from Tarzana and confirmed that petitioner had been admitted.
DCFS also reported that after being admitted to the Tarzana program in May 2006, petitioner called the social worker and stated he wanted to have a visit with Chantel and Sophia. Petitioner had had no contact with Chantel since she left the hospital. On June 2 and June 12, 2006, petitioner had monitored visits with Sophia and Chantel at the DCFS office. The visits were stressful for both children because of the amount of time that had passed since their last visits. The second visit went better than the first.
The juvenile court ordered petitioner to drug test once a week and continued the section 366.21, subdivision (e) hearing for contest.
Contested Six-Month Status Review Hearing. On August 14, 2006, the juvenile court conducted a contested section 366.21, subdivision (e) hearing. Admitted into evidence were several letters from Tarzana personnel. They revealed that petitioner was placed on a waiting list in January 2006 for admission to a drug rehabilitation program; he commenced detoxification on April 20, 2006; and on May 4, 2006, was admitted to the drug rehabilitation program. Petitioners completion date had not yet been determined. However, treatment usually lasted 180 days. Petitioner was in good standing and had been compliant. He was "starting to rebuild a sober support system." Petitioners treatment included classes in chemical dependency, relapse prevention, anger management, health education, spirituality and parenting adolescents and infants. Although petitioner had not been drug testing in the manner required by the court, petitioner had always appeared ready for testing and had tested clean on all of the in-house tests and was in full compliance. However, he had not been allowed to submit to random drug tests for DCFS because DCFS had not placed petitioner on the testing list. Petitioner had tried many times to inform DCFS that he needed these tests and wanted to visit with his children.
In a report prepared for the hearing, DCFS advised that although the social worker requested that he do so several times, petitioner refused to sign a release to allow the social worker access to his records. As a result, the social worker was unable to verify petitioners test results.
With respect to visitation, DCFS reported that a visit had been scheduled for June 30, 2006. However, the social worker was not at work and no one else was available to monitor the visit. On July 7, 2006, a scheduled visit was canceled because the caregiver was unable to transport Chantel to the DCFS office. Petitioner visited Chantel on July 14 and 27 and August 4 and 11, 2006.
Service notes reflecting services provided by DCFS were also admitted into evidence. They revealed the social worker had attempted to return petitioners telephone calls, but was unable to reach either petitioner or his drug counselor.
George Hester, a Tarzana drug counselor, testified that petitioner entered the detoxification program because he had been using heroin and alcohol. Hester became petitioners counselor after petitioner was released from detoxification and placed in the short-term program. He counseled petitioner for about two months, until petitioner transitioned into the long-term program. After being transferred to the long-term program, petitioner was tested randomly each week for drugs. He had been testing in this manner for about six to eight weeks prior to the hearing. All tests were negative. Petitioner was doing well in the program. Because Tarzana has a program for DCFS clients that allows a child to be placed with the parent, Chantel could be placed with petitioner in the facility. Hester claimed that he called the social worker several times a day, on Mondays, Wednesdays and Fridays, from May 5, 2006, to May 22, 2006, but never received a reply.
Petitioner testified that his drug of choice is heroin. He explained that in August 2005, he was injured at work and was prescribed Vicodin for pain. In April 2006, just before he went into detoxification, he began using heroin. He used the drug for about three weeks.
Petitioner claimed he began calling the social worker regularly in January 2006, but never received a return call.
Petitioner stated that once he completed his long-term program of about six months, which would be in October 2006 or sooner, he would transition to sober living, where he could have Chantel live with him.
Petitioner stated he attended parenting sessions every week from April through August 2006. He also attended drug counseling sessions with Mary Rigley. In addition, he saw a licensed therapist named Robin on a regular basis. Petitioner claimed he signed releases for his attorney and the social worker so they could receive his Tarzana information.
On cross-examination, petitioner testified he had been clean and sober for over four years. He had completed one other program, but believed Tarzana to be superior because of its intensive one-on-one counseling.
The juvenile court terminated petitioners reunification services. In so doing, the juvenile court noted that no evidence had been presented to show that petitioner had gone through individual counseling or that he had been testing. Nor did the juvenile court have evidence about how many parenting classes petitioner had attended.
The juvenile court noted that petitioner, who had a 23-year drug history, had been ordered to enroll in a drug program in November 2005. Petitioner did not enroll in any kind of program from October 2005 to May 2006. While the juvenile court recognized that petitioner had been placed on a waiting list in January 2006, the juvenile court believed there were other programs available; that petitioner could have started one sooner.
The record reveals a 28-year history.
The juvenile court rejected petitioners claim that there was a substantial likelihood that Chantel would be returned to his care. The juvenile court stated: "I dont find a substantial likelihood at all. I find a person with a 23-year history of heroin use, with a couple of years [of sobriety] in between, whos been in a program for three months, with no evidence of counseling. Until today, I didnt know he was testing. [¶] According to the social worker, she couldnt get any information because he never signed a release. He says he did, but thats his word against hers. And the fact that there is no evidence leads me to believe that shes telling the truth and not him." The juvenile court then stated that even if, as petitioner claimed, "an accident led him back to heroin," the juvenile court had "no evidence whatsoever that hes beat his heroin [addiction]" other than a three-month drug program. The juvenile court concluded: "I dont know what his triggers are. I dont know whether hes going to go back to heroin. I have no information whatsoever." The juvenile court then noted that petitioner had been in a drug treatment program for only three months with a remaining three to nine months to complete, was only on his third step in his 12-step program, and presented no evidence of his participation in individual counseling.
At the conclusion of the contested six-month status review hearing, the juvenile court found that return of Chantel to petitioners custody would create a substantial risk of detriment to the childs physical and emotional well-being, and that petitioner had only partially complied with the case plan. The juvenile court also found that DCFS had made reasonable efforts to enable Chantels safe return home, and that there was not a likelihood or probability of return by December 11, 2006, the 12-month date.
The juvenile court terminated petitioners reunification services and set a section 366.26 hearing for December 11, 2006, to select and implement a permanent plan for Chantel. This petition followed.
II. DISCUSSION
Petitioner contends the juvenile court erred in terminating his reunification services before the 12-month date in December 2006 because substantial evidence shows he had made significant progress in resolving the problems that led to Chantels detention and there was a substantial probability Chantel would be returned to him in the next six months.
Although section 366.21, subdivision (e) provides for the termination of family reunification services after six months for children under the age of three, reunification services may be extended up to a maximum period not to exceed 18 months after the date the child is originally removed from the physical custody of his parent, but only if the juvenile court "finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent." (§ 361.5, subd. (a)(3).) "[I]n order to find a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: [¶] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1); see Cal. Rules of Court, rule 1461(c)(3).)
Subdivision (e) provides: "If the child was under the age of three years on the date of the initial removal, . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . . may be returned to [a parent] . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e).)
The purpose of a reunification plan is to assist a parent in overcoming the problem that led to the childs detention. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.) Both "general compliance" with the plan and "substantive progress" toward alleviating or mitigating the causes necessitating placement are indicia of progress toward family preservation and show that the parent can provide for the childs safety and well-being. (Id. at pp. 1344-1345.) The extent of a parents compliance with the reunification plan, though not determinative, is a pertinent consideration in deciding whether to terminate reunification services. (Id. at p. 1341; § 366.21, subd. (f).) We review the order terminating reunification services for substantial evidence. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341; see also Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
Substantial evidence supports the juvenile courts findings that petitioner failed to demonstrate significant progress in resolving his drug problem (§ 366.21, subd. (g)(1)(B)) and that he did not demonstrate the capacity and ability to complete the objectives of his treatment plan and provide for Chantels safety and well-being within the next six months (§ 366.21, subd. (g)(1)(C)). Chantel was detained because of petitioners lengthy history of drug use. Shortly after Chantel was detained, petitioner, who claims he had been abusing a prescription drug, began using heroin. In November 2005, petitioner was ordered to participate in individual counseling and to complete a drug rehabilitation program, which was to include weekly drug testing, and to attend a parenting education class. Although petitioner completed the parenting class, and presented evidence that he had participated in some form of counseling, he failed to present evidence showing he had participated in individual counseling. As for the drug program, petitioner admitted that he was abusing prescription drugs after Chantel was detained and that he then began using heroin. Even though he had been ordered to participate in drug counseling in October and November 2005 and had been given referrals in November 2005, he waited until January 2006 to take action. He then did nothing more than place himself on a waiting list. He did not begin a detoxification program until April 2006, and was not admitted to Tarzanas short-term program until May 2006. By the time of the August 2006 hearing, petitioner had participated in the program for a mere three months. He had not yet completed the facilitys long-term program. While he had met with some success and believed he would be able to complete the program, this was mere speculation on his part.
Petitioner seems to suggest he would have enrolled in a drug treatment program earlier than May 2006, had he not been on "general relief." However, petitioner failed to show what attempts he made to gain admittance to a program earlier than May 2006.
As for visitation, the record shows that petitioner had no contact with Chantel after she left the hospital until June 2006. Although petitioner claims he complied with visitation "to the best of his ability considering the fact that he was in an in-patient program and having trouble connecting with the social worker," petitioner did not enter the program until May 2006. He does not explain why he made no attempt to visit during the period of October 2006 through April 2006.
Nothing contained in this record indicates petitioner substantially complied with the court-ordered program. The evidence is substantial and supports the juvenile courts findings that petitioner failed to make significant progress in resolving his drug problem, and failed to demonstrate the capacity and ability to complete the objectives of his treatment plan and provide for Chantels safety and well-being prior to December 11, 2006.
Accordingly, the juvenile court properly found that petitioner was not entitled to an extension of reunification services.
III. DISPOSITION
The order to show cause is discharged and the petition for writ of mandate is denied. This decision is final in this court immediately. (Cal. Rules of Court, rule 24(b)(2)(A).)
We concur:
BOREN, P.J.
CHAVEZ, J.