Opinion
A132463
09-15-2011
J.D., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. JV100124)
J.D. (Father) seeks extraordinary relief from an order of the Humboldt County Superior Court, Juvenile Division, entered June 8, 2011, that terminated his reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor, A.D. (born July 2010). Father urges that the juvenile court's termination of his services was error, because the evidence did not support either its finding he "failed to engage in services . . . and failed to make substantive progress in [his] Court ordered treatment [plan]," or its finding there was not a substantial probability A.D. could safely be returned to Father's custody and care by the date for the 12-month permanency hearing. As discussed below, we conclude that substantial evidence supports the challenged findings, and deny Father's petition for an extraordinary writ on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
I. BACKGROUND
The Humboldt County Department of Health and Human Services (Department) initially detained the minor—then one month of age—on August 18, 2010, and two days later filed a petition under section 300, subdivisions (a) and (b). The juvenile court formally ordered A.D.'s detention on August 24.
The amended allegations under section 300, subdivision (b), stated: (B-1) Father and L.H. (Mother) were involved in an incident of domestic violence on August 1, 2010, in which Father attempted to kick Mother while she was holding the infant A.D., and as a result kicked A.D. in the head; (B-2) neither parent sought medical attention for A.D. following this incident, and A.D. was given such attention only after A.D.'s maternal grandmother learned about the incident from a law enforcement officer; and (B-3) on August 1, Father and Mother left A.D. in the care of her paternal grandmother, went out drinking, and returned to find the grandmother passed out on the couch with the baby beside her—a circumstance Mother, who was too drunk to care for A.D., thought "funny." At the conclusion of the jurisdictional hearing on October 4, 2010, the juvenile court struck the amended allegation under section 300, subdivision (a), but sustained the foregoing allegations under section 300, subdivision (b).
Allegation B-3 also stated Mother's probation officer, on August 18, 2010, found A.D. at Mother's home in the care of A.D.'s seven-year-old aunt, who was holding A.D. without proper support for her head. Mother's stepfather, T.P., with whom Mother had left the baby, was found in a backyard shed and appeared to be disoriented.
At the dispositional hearing on November 8, 2010, the juvenile court ordered removal of A.D. from Mother's physical custody under section 361, subdivision (c)(1), and directed the Department to provide her with reunification services. On November 22, once genetic testing had verified Father's paternity, the court ordered reunification services for him as well. (See § 361.5, subd. (a).)
Father's case plan addressed goals of anger management, sobriety, and attentive parenting. It called on Father to engage in mental health counseling focusing in particular on anger management and domestic violence issues, to complete either a parenting education class or one-on-one parenting services offered through the county's public heath agency, to complete an AOD (alcohol and other drug) assessment and follow through on any recommendations for substance abuse treatment, and to submit to weekly substance abuse testing. Father was to visit with A.D. three hours weekly, with visits initially supervised.
In a report prepared for the six-month status review hearing (the six-month hearing), the assigned social worker reported she had referred Father to AOD for an assessment, and had given him an AOD orientation packet. She also gave Father several referrals for both mental health services and parenting education services. When Father told her transportation was a problem with compliance, she gave him bus tickets and on several occasions offered him rides to assure his access to services. Nevertheless, Father failed to complete an AOD assessment or engage in substance abuse treatment, and during the six-month period had three known contacts with police, who had reported Father to be intoxicated either at the time of the incident or at the time of contact. Father also failed to follow through with any of his referrals for mental health and parenting services. The social worker noted Father had "demonstrated his ability to bond and connect with his daughter during visits," but had not been entirely reliable in that he sometimes failed to show without cancelling and ended a number of visits early.
Father lives in McKinleyville, some distance north of service locations in Eureka, and did not own a vehicle.
According to an attached report by the Humboldt County Sheriff's Department, Father was arrested on March 9, 2011, pursuant to a warrant issued for his violation of Penal Code section 243, subdivision (e)(1) (battery of person in dating relationship). At that time he was also charged on two "fresh cases." These involved an incident in late February, in which Father reportedly stabbed an adult male after they had an argument, and an altercation earlier in March with Mother, which reportedly began due to Father's belief Mother was a "whore" and which resulted in injuries to her. Father remained incarcerated at the time the six-month report was completed in late April. In an at-issue memorandum filed on May 25, in which Father requested additional services, he also stated that he "intend[ed] to be released from jail within a month," after which he "anticipate[d] full participation" in case plan services.
The social worker recommended the juvenile court terminate both parents' services at the six-month hearing. On June 8, 2011, following a contested hearing, the court adopted this recommendation and set the matter for a hearing under section 366.26, to select a permanent plan for A.D.
Father's petition followed. (§ 366.26, subd. (l).)
II. D ISCUSSION
A. Introduction
If a child is not returned to his or her parent's custody at the six-month hearing, and that child was under three years of age at the time of his or her initial removal, the juvenile court "may" schedule a hearing pursuant to section 366.26 if it finds "by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e), 3d par.) On the other hand, it must continue the matter to the 12-month permanency hearing (the 12-month hearing) if it finds either that there is a "substantial probability that the child . . . may be returned to his or her parent . . . within six months," or that "reasonable services have not been provided." (Ibid.)
The juvenile court in this case found Father had "failed to participate regularly and make substantive progress in [his] court-ordered treatment program[]." It also found there was "no substantial probability of a return of the minor to [Father]." The court accordingly exercised its discretion to set a hearing under section 366.26. Father claims the juvenile court erred in making these findings. B. Failure to Make Substantive Progress in Court-ordered Treatment
Father argues the juvenile court failed even to make a "specific finding" to this effect pursuant to the clear and convincing standard of proof. It appears he is referring to absence of this finding in the formal findings and orders that the court signed and filed on June 9, 2011. However, the court did make the finding we have quoted in its oral ruling on June 8. This finding is further reflected in the minute order for June 8, in which the court found Father "failed to engage in services offered . . . and failed to make substantive progress in court ordered treatment." When there is a conflict in the record, that part of the record will prevail that is entitled to greater credence under the circumstances. (People v. Smith (1983) 33 Cal.3d 596, 599.) We note here the formal findings and orders included in the clerk's transcript are simply the marked portions of a standardized form—one that did not include the finding under section 366.21, subdivision (e), so that it could have been "checked" for inclusion as one of the formal findings. As such, we give greater credence to the court's finding set out in the reporter's transcript and in the minute order. We further note that, while the court did not expressly make its finding under the clear and convincing standard of proof, the court is presumed to have made the finding as required by the statute, and nothing in record indicates it did not do so. (See Evid. Code, § 664.)
--------
Father asserts there was not clear and convincing evidence to support the finding he had "failed to participate regularly and/or failed to make progress in [his] court-ordered treatment program." Father points out he made some efforts with his case plan: that is, he made initial contacts with AOD and another service provider and read a parenting book while incarcerated in jail. Primarily, however, Father claims his "visitation history" was "stellar," resulting in a "parent-child bond" between himself and A.D. Arguing that visitation has been "statutorily and judicially elevated" above other case plan components, Father suggests his "visitation history" alone was sufficient to compel the court to find he had participated regularly in his court-ordered case plan.
We review a finding, made in a dependency proceeding by clear and convincing evidence, to determine whether it is supported by substantial evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Thus we review the record in the light most favorable to the juvenile court's ruling, and uphold the finding when there is substantial evidence permitting a reasonable trier of fact to make the finding under the clear and convincing standard of proof. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.)
Initially, we do not agree visitation is "elevated" above other case plan components for purposes of making a finding under section 366.21, subdivision (e). On this point Father cites section 362.1, which among other things provides that any order of reunification services must include "[v]isitation . . . as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) He also cites decisions such as In re Alvin R. (2003) 108 Cal.App.4th 962, which—in the context of deciding whether the agency had offered or provided reasonable services—stated "[v]isitation is an essential component of any reunification plan." (Id. at p. 972.)
The legislative purpose underlying the statutory emphasis on visitation is to "maintain ties" between the minor and the parent and "to provide information relevant" to the juvenile court's determination whether, or when, to return a minor to a parent's physical custody. (§ 362.1, subd. (a).) Here there is no issue concerning the reasonableness of the visitation offered by the Department. The finding prerequisite to the termination of services focuses on a parent's "fail[ure] to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e), 3d par., italics added.) In our view the phrase "treatment plan" in section 366.21, subdivision (e) necessarily refers to those components of a case plan designed not so much to "maintain ties" as to address and remedy the conduct that led to the parent's loss of custody.
We have summarized above Father's court-ordered plan and the relevant evidence regarding his compliance during the six-month period under review. Viewing that evidence in the light most favorable to the juvenile court's ruling, we have no difficulty concluding there is substantial evidence by which a reasonable trier of fact could find, under the clear and convincing standard of proof, that Father "failed to participate regularly and make substantive progress in [his] court-ordered treatment plan." (§ 366.21, subd. (e), 3d par, italics added.) Father testified he was arrested shortly after he made his initial contacts with service providers, but as Father himself conceded, he was "being lazy" before his arrest, and the circumstances leading to his incarceration cannot excuse his subsequent failure to make substantive progress with his court-ordered treatment plan. C. Substantial Probability of Return
Father contends the juvenile court erred in finding there was no substantial probability that A.D. could be returned to him if he was given additional services. He reasons the court approved his case plan at the dispositional hearing, and by implication approved the plan as one in which reunification was possible if successfully completed within six months. By extension, he urges that, if he was capable of reunifying with A.D. during the first six-month period of services, he is just as capable of successful reunification within the "next six month" period.
The Supreme Court has construed the "six months" in section 366.21, subdivision (e) to mean "such time as remains until a potential 12-month review hearing, even if less than six months." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840.) The 12-month hearing must be held no later than 12 months after the minor "entered foster care." (§ 366.21, subd. (f).) In this case, A.D. "entered foster care" on October 4, 2010, the date the court concluded the jurisdictional hearing. (§ 361.49.)
Thus, the question is whether there is substantial evidence to support the juvenile finding that there was not a "substantial probability" that A.D. could safely be returned to Father's custody by October 4, 2011, some four months after the six-month hearing on June 8. (See In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.)
Father's testified at the six-month hearing that he believed he would be released from jail in one month. As counsel for the Department pointed out, however, Father's belief is not evidence of his actual custodial status. Even if it were, this left Father with about three months to engage in services, and Father's only evidence that he could reunify successfully in this period of time was his expressed willingness to engage in services once he was released. If Father's case plan presupposed he was capable of reunifying in the initial six-month period—a period during which the evidence showed he had not actually engaged in services at all—we are not persuaded it is a necessary corollary he was capable of reunifying with A.D. after some three months of services, simply because he was now willing to engage in them. We conclude substantial evidence supports the juvenile court's negative finding, that there was no substantial probability A.D. could be returned to Father within the period remaining for additional services.
III. DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.454(a), 8.490(b)(3).)
Margulies, Acting P.J.
We concur:
Dondero, J.
Banke, J.