Opinion
H038639
10-25-2012
C.J., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent, SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. DP002153)
I. INTRODUCITON
C.J., the father of the child at issue in this juvenile dependency case, has filed a petition for extraordinary writ seeking review of the juvenile court's orders (1) removing the child from placement with the mother pursuant to a Welfare and Institutions Code section 387 supplemental petition; (2) terminating reunification services; and (3) setting a section 366.26 hearing to implement a permanent plan. In his writ petition, the father, a self-represented litigant, states that he does not want to give up his rights as the child's father and he intends to seek custody of the child upon his release from incarceration in state prison.
All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.
For the reasons stated below, we find that father has not shown that the juvenile court's findings and orders are not supported by substantial evidence and, therefore, we will deny the writ petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
On September 9, 2009, the Santa Cruz County Human Services Department (the Department) filed a petition under section 300, subdivision (b) [failure to protect] alleging that the child came within the jurisdiction of the juvenile court. The investigation narrative submitted with the petition stated that after the child was born in early September 2009, both the mother and the child tested positive for marijuana. The child was detained in the neonatal intensive care unit of the hospital where she was being treated with morphine for withdrawal symptoms. The mother admitted taking methadone during the pregnancy and also using cocaine and drinking alcohol. Additionally, the mother stated that she was bipolar and was taking several medications for that condition.
Regarding her living situation, the mother told Department's investigating social worker that she was married to man who was not the father, and her home was "not well suited" for the child. The father, C.J., was on disability because he was bipolar and had suffered a head injury. He also had a criminal history and was currently on probation for a domestic violence offense. Shortly after the child's birth, the father tested positive for marijuana.
The investigating social worker determined that an allegation of severe neglect by the mother was substantiated due to her substance abuse during pregnancy and the child's exposure to drugs in utero. The social worker also determined that an allegation of substantial risk of general neglect by the parents was substantiated because their "current substance abuse seriously impair[s] their ability to supervise, protect, or care for [the child] and that their emotional stability, developmental status, or cognitive deficiency seriously impairs their current ability to supervise, protect, or care for the [child]."
After a detention hearing, the juvenile court entered its findings and order on September 15, 2009. The court found that a prima facie showing had been made that the child came within section 300 and detention was necessary because "[t]here is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child's physical or emotional health may be protected without removing the child from the parent's . . . physical custody." The court temporarily vested placement and care of the child with the Department and found that reasonable efforts had been made to prevent the removal of the child from the family home.
The juvenile court also declared that C.J. was the presumed father of the child, as stated in the parentage findings and judgment entered on September 25, 2009.
B. Jurisdiction/Disposition
The Department filed a jurisdiction/disposition report on November 17, 2009. The report stated that the child had been placed in a foster home where she was doing very well. The Department recommended that the child remain in foster care and be declared a dependent of the juvenile court since the parents were not able to provide a safe and stable environment for the child due to their use of illegal drugs and their mental health issues. The Department also recommended that the parents be offered reunification services and noted that they had already been provided with case management services, as well as referrals for parent-child visitation, counseling and parenting classes, and alcohol and drug assessment and treatment.
A contested hearing on jurisdiction and disposition was held on November 17, 2009. The juvenile court entered its jurisdiction order on November 23, 2009, sustaining the section 300 petition and declaring that the child was a dependent of the court. The court also entered dispositional orders on November 23, 2009, removing the child from the mother; placing her in the care, custody and control of the Department; and directing that the parents be offered reunification services and supervised parent-child visitation.
C. Interim Status Reviews
The first interim review of family reunification took place on February 16, 2010. At that time, the Department reported that the parents were making good progress with their case plans, were visiting the child regularly, and were participating in family preservation court. Additionally, the parents were participating in out-patient drug treatment, with negative test results, and had completed parenting classes. The father had also completed 36 weeks of anger management and was attending AA meetings.
In conjunction with the six-month interim review held on May 11, 2010, the Department submitted its "six month review of dependency report." According to the report, the child was thriving in her foster home and the parents' supervised visitation had been increased to at least four times per week. Although the mother had been active in her case plan activities, she continued to "struggle with stabilizing her mental health and psychotropic medication issues." She also had not demonstrated that she was capable of providing for the care of her child full-time. The father was struggling with mental health and substance abuse issues, had tested positive, and had been inconsistent in drug testing. The Department recommended that the child continue as a dependent child of the juvenile court and that the parents continue to be provided with reunification services. The juvenile court adopted these recommendations, as stated in the order entered on May 13, 2010.
The next interim review report was filed by the Department on August 17, 2010. At that time, the child continued to reside in the same foster home and was "developmentally on task." The mother was maintaining her sobriety and her unsupervised visitation had been increased to four or five times per week. The father appeared to be distracted by his criminal matters, which included an upcoming hearing on a charge of violation of probation. He seemed to be unable to follow the monitor's simple directions during his supervised visitation with the child. It was "unclear [as to] what [the father's] level of commitment is thus far in regards to his daughter." The Department recommended that the parents continue to be provided with reunification services and that the child remain a dependent minor. The juvenile court adopted the Department's recommendations.
The Department filed its 12-month status review report on November 9, 2010. Although the parents had been "steadily transitioning to more extensive visitation" with the child, the Department remained concerned "regarding each parent's ability to parent independently of the other." The mother had made "outstanding progress in her recovery" and her mental health had improved, but the Department questioned her ability to handle the stress of co-parenting and raising a baby. The father continued to struggle with consistently attending treatment and AA/NA meetings, although he had not tested positive for any nonprescribed substances. Additionally, the father had been arrested on misdemeanor charges of battery of a spouse or cohabitant and dissuading a witness. The Department recommended that the child continue in her current foster home placement, that the parents be offered an additional six months of reunification services, and that the father submit to a neuropsychological evaluation regarding the effects of a previous brain injury. The juvenile court set a settlement conference on the issue of the neuropsychological evaluation, at the father's request.
The settlement conference was held on November 23, 2010. The parents agreed to extended reunification services and the father agreed to submit to the neuropsychological evaluation. The juvenile court found there was a substantial probability of return of the child to the care of the parents and adopted the Department's recommendations in the 12-month status review report.
The next interim review of family reunification was held on January 18, 2011. The Department's social worker reported that both parents were "working their case plans and doing well." The mother had new housing and her visitation had increased to overnight visits with the child.
The 18-month family reunification review report was filed on March 8, 2011. The Department stated that the child continued to reside in her foster home and had been spending four nights per week with the mother, who had "liberal" unsupervised visitation. The mother had also graduated from family preservation court, had completed drug and alcohol treatment, and remained engaged in counseling. She had tested positive for methadone on several dates. The father had three unsupervised visits with the child per week. He had been discharged from one outpatient treatment program for excessive absences and had enrolled in another program, where he had not submitted to any drug testing. The Department recommended that the child be returned to the care of her mother and remain a dependent of the court. Additionally, the Department recommended that the family be offered six months of family maintenance services and that the father continue to visit the child regularly. The juvenile court adopted the Department's recommendations, as stated in the order of March 10, 2011.
The Department filed the next status review report on September 6, 2011. During the reporting period, the child resided with her parents, who had completed their drug and alcohol treatment programs, had tested negatively for nonprescribed substances, and had graduated from family preservation court. However, in August 2011 the mother reported to the social worker that she had used cocaine and marijuana the previous day and had experienced severe depression after the death of her mother. A safety plan was developed for the mother that involved attending daily AA/NA meetings, scheduling a doctor's appointment, and inquiring about grief counseling. The father had been serving as the child's primary caretaker while the mother visited her ill grandmother and ill mother. The Department found that the parents had done "an excellent job of co-parenting" and recommended that the child continue as a dependent of the court, the parents continue to receive family maintenance services, and a hearing be scheduled to consider dismissal of the case. The juvenile court adopted the Department's recommendations, as stated in the order of September 12, 2011, with the exception of setting a family maintenance review hearing for March 6, 2012, rather than a dismissal hearing.
In February 2012, the mother obtained an emergency protective order directing the father to stay away from the mother and to immediately move from her address. The mother reported that the father had become angry with her and struck her on the face, causing a bloody nose and mouth. In a memo to the juvenile court filed on April 19, 2012, the Department reported that the mother had met with the social worker to discuss following through on a safety plan after the domestic violence incident involving the father. The Department also reported that the mother had tested positive for marijuana and/or methadone on five occasions and had missed three drug tests. She had also failed to attend appointments with the physician prescribing her psychotropic medications, but had attended AA/NA meetings almost every day. The father was incarcerated.
The 12-month review of family maintenance was held on April 19, 2012. The mother informed the juvenile court that she had placed the child in the care of a friend, without the Department's knowledge. The Department advised the court that there was "new information which needs to be investigated . . . ." The court granted the request of minor's counsel to continue the matter and directed the Department to file a section 387 supplemental petition "if they deem it necessary." It was agreed that the child would be temporarily placed with the mother's friend, and the court ordered the mother not to remove the child without court permission.
D. Section 387 Supplemental Petition and Contested Hearing
The Department filed a section 387 supplemental petition seeking a more restrictive placement on April 23, 2012. The petition stated that the previous disposition had not been effective in the protection of the child, based on the following facts: The mother actively used marijuana without a medical marijuana card; she had misused methadone, becoming incapacitated when she was the primary care provider for the child; she recently had five positive drug tests; her substance abuse rendered her unable to provide safe and consistent parenting; she had failed to comply with court-ordered services designed to stabilize her mental health symptoms; her lifestyle had "destabilized," with inconsistent housing, poor parenting, and exposure of the child to dangerous individuals; she had initially failed to disclose the father's domestic violence to prevent his arrest, thereby placing the father's needs before the child's needs; the father had assaulted the mother in the presence of the child; the father had "a significant criminal history of violent crimes"; he had failed to consistently participate in court-ordered services, including substance abuse testing and anger management; and he was not able to provide care for the child because he was incarcerated.
A section 387 detention hearing was held on April 24, 2012. As stated in the findings and order filed on April 26, 2012, the juvenile court found that "[t]here is substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child's physical or emotional health may be protected without removing the child from the parent's or guardian's physical custody." Placement and care of the child were temporarily vested in the Department pending further court order.
The Department filed an adjudication report for the section 387 petition on June 7, 2012. At that time, the child was residing in a foster home, where she was being visited by the mother, and the father was incarcerated in the county jail. Among other things, the Department reported that it had made "extensive referrals and attempts to assist [the mother] and [the father] with engaging in services since 09/10/09, when [the child] was first placed in protective custody. The Department offered both parents family reunification services for a period of 18 months. Once [the child] returned to the care of her parents, [t]he Department offered family maintenance services for an additional year. Although both parents participated in their case plan, their engagement was inconsistent." The Department concluded that the parents had "been unable to provide a consistent and safe environment" for the child and that continuing to offer services to the parents "would place [the child] in immediate risk for future physical and emotional harm." The Department therefore recommended that the child remain in out-of-home care, that services not be offered to the parents, and that a section 366.26 hearing be held to determine a permanent plan.
At the hearing on the section 387 petition held on June 7, 2012, the parents did not agree with the Department's recommendations and requested the matter be set for a settlement conference. During the July 24, 2012 settlement conference, no agreement was reached and the matter was set for a contested hearing.
The contested hearing on the section 387 petition was held on July 30, 2012. In addition to submitting documentary evidence, the parties argued their respective positions and made offers of proof. The Department advised the court that the case had progressed beyond the statutory 18-month time limit for providing reunification services, and, although there was a "strong connection" between the mother and the child and extensive services had been offered to the mother, she was not able to provide a stable home for the child. The Department therefore contended that removal of the child was necessary for her protection. The minor's counsel stated that the child was bonded to the mother, but acknowledged that the mother had trouble parenting "without a lot of help and support because of her emotional fragility . . . ." The mother argued to the contrary that the evidence showed that she could be a safe parent, and requested return of the child.
The juvenile court made several factual findings from the bench regarding the extensive services that the Department had offered to the parents and their progress during the dependency proceedings. Among other things, the court stated: "[T]he concern of the Court has been stability. And so there has been a lack of stability consistently. And the fact that we've been involved in [the child's] life her entire life without an appreciable period of stability warrant for the Court to continue its supervision and dispositional orders." The court then ruled: "So what we have is unfortunately a fragile arrangement of family maintenance that as of August of last year derailed and Mother was not able to ever get it back on track. . . . [¶] . . . [T]his is a very clear cut legal decision for the Court to make. Sadly, though. And so the Court is not only finding that the [section] 387 petition is sustained, but as far as the dispositional order, I'm . . . finding by clear and convincing evidence that the welfare of the child is best served by continued removal from her parents. [¶] . . . I'm finding that reunification services have run out. So we are no longer able to offer, and will not be offering reunification services to either parent."
E. Adjudication and Dispositional Orders
The juvenile court's adjudication order on the section 387 petition was filed on August 9, 2012. The order states that "[c]onditions still exist that justified the initial assumption of jurisdiction under [section] 300" and "[t]he best interests of the child require continued juvenile court jurisdiction."
The dispositional order on the section 387 petition was also filed on August 9, 2012. The order states the juvenile court's findings, as follows: By clear and convincing evidence, the child's welfare requires that physical custody be taken from the parents; the child would be in substantial danger if she were returned to the parents' home; the option of removing an offending parent from the home had been considered and rejected; no parent had presented a plan demonstrating by clear and convincing evidence that he or she would be able to protect the child from future harm; out-of-home placement was appropriate and necessary because the parents had made little or no progress in alleviating or mitigating the causes of the child's out-of-home placement; there were no suitable relatives willing and able to take the child into their homes; and adoption or legal guardianship would be ordered as the permanent plan pending the section 366.26 hearing. The court also ordered that no reunification services be provided and allowed the parents to have visitation with the child.
The August 9, 2012 dispositional order also set the section 366.26 permanency planning hearing on November 27, 2012. The parents were advised of their right to seek appellate review of the court's decision to set a section 366.26 hearing by filing a writ petition. The mother attempted to file a notice of intention to file a writ petition, but the notice was not filed because it was untimely.
The father filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 on August 23, 2012, seeking (1) review of the July 30, 2012 order; (2) an order vacating the section 366.26 hearing; (3) reunification services; and (4) custody of the child upon his release from prison. The father's contentions, stated in their entirety, are that he is "[c]urrently incarcerated. I am not at all interested in giving up my rights as [the child's] father. I will seek full custody if not shared custody of my child, []. Please understand, regardless of my current incarceration, I have not and will not give up interest in my child. Upon my release, I will work with the Courts to gain custody and support of my child. Thank you."
All further rule references are to the California Rules of Court unless otherwise indicated.
July 30, 2012, is the date of the contested hearing on the section 387 supplemental petition. The juvenile court's written adjudication and dispositional orders were both filed on August 9, 2012.
III. DISCUSSION
Before evaluating the father's contentions, we will provide an overview of the statutory requirements for a section 387 supplemental petition and the termination of reunification services, as well the applicable standards of review.
A. Section 387 Supplemental Petition
Section 387, subdivision (a) provides: "An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition."
A supplemental petition may be filed by the Department where it "concludes that a previous disposition has not been effective in the protection of a child declared a dependent under section 300 and seeks a more restrictive level of physical custody." (Rule 5.560(c).; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1075 [former rule 1430(c)] (Kimberly R.).) A "more restrictive level of custody" includes "[p]lacement in a foster home." (Rule 5.560(c)(4).)
"The standard for removal on a supplemental petition is the same as removal on an original petition: the agency must show by 'clear and convincing evidence . . . [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor' if left in parental custody 'and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [parental] physical custody.' (§ 361, subd. (c)(1); [Citation]." (Kimberly R., supra, 96 Cal.App.4th at p. 1077.)
"If, at the section 387 adjudication [hearing], the court finds the previous disposition was not effective in the protection . . . of the child, the court is required to hold a disposition hearing. ([Former] Rule 1431(d)(1) [now rule 5.565(e)].)" (In re Javier G. (2006) 137 Cal.App.4th 453, 462.) "In a section 387 disposition hearing, the [Department] has the burden of proof to show reasonable efforts were made to prevent or eliminate the need for removal. [Citations.]" (Id. at p. 463; § 361, subds. (c), (d).)
Where, as here, the juvenile court makes its dispositional order removing a dependent child from a parent at the same hearing as the order setting the section 366.26 hearing, the dispositional order is not directly appealable and may only be challenged by an extraordinary writ petition. (In re Athena P. (2002) 103 Cal.App.4th 617, 625-626; see Rule 5.695(h)(15).) "On a challenge to an order removing a dependent child from his or her parent, we are limited to whether the order is supported by substantial evidence. We view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value. [Citation.]" (Kimberly R., supra, 96 Cal.App.4th at p. 1078.)
B. Termination of Reunification Services
Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parents' custody. (See In re Luke L. (1996) 44 Cal.App.4th 670, 678 (Luke L.).) "Only where there is clear and convincing evidence the [Department] has provided or offered reasonable services may the court order a section 366.26 hearing." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165 (Robin V.); § 366.21, subd. (g)(2).)
"Reunification services must be 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' (§ 362, subd. (c).) Accordingly, a reunification plan must be appropriately based on the particular family's 'unique facts.' [Citation.]" (In re T.G. (2010) 188 Cal.App.4th 687, 696; see Luke L., supra, 44 Cal.App.4th at p. 678.) " ' "[T]he record should show that the [Department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." [Citation.]' [Citation.]" (In re T.G., supra, at p. 697; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793-794.) "Among its components, the reunification plan must include visitation. (§ 362.1.) That visitation must be as frequent as possible, consistent with the well-being of the minor. (Ibid.)" (Luke L., supra, at p. 679.)
"The adequacy of reunification plans and the reasonableness of the [Department's] efforts are judged according to the circumstances of each case." (Robin V., supra, 33 Cal.App.4th at p. 1164; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) That additional services might have been possible, or that the services provided were not the services the parent thought were best for the family, does not render the services offered or provided inadequate. " 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' " (In re T.G., supra, 188 Cal.App.4th at p. 697; In re Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).)
On appeal, the applicable standard of review is sufficiency of the evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688 (Kevin R.).) "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the [Department]. We must indulge in all legitimate and reasonable inferences to uphold the [juvenile court's findings]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (Misako R., supra, 2 Cal.App.4th at p. 545; In re Monica C. (1995) 31 Cal.App.4th 296, 306.) "We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
C. Analysis
The Department requests that the writ petition be dismissed because it does not comply with the requirement that the petition be accompanied by a memorandum that provides a summary of significant facts, separately headed points supported by argument and citation of authority, and citations to the record for any reference to a matter in the record. (Rule 8.452(a), (b).) Alternatively, the Department argues that the juvenile court's orders are supported by substantial evidence and for that reason the writ petition should be denied. As we will discuss, we agree that the court's orders are supported by substantial evidence.
Whether appellate review is sought in a writ proceeding or in an appeal, we apply the general rule that the trial court's judgment or order is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Where, as here, our standard of review requires that we review the juvenile court's order for substantial evidence (Kimberly R., supra, 96 Cal.App.4th at p. 1078; Kevin R., supra, 191 Cal.App.4th at p. 688), the party challenging the order "has the burden to demonstrate that there is no evidence of a sufficiently substantial character to support" the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420; see also In re N.M. (2011) 197 Cal.App.4th 159, 169.)
Here, the father has made no effort to demonstrate that the juvenile court's August 9, 2012 adjudication and dispositional orders are not supported by substantial evidence. Having reviewed the entire record on appeal, we determine that substantial evidence supports the court's orders. The evidence shows that the parents received reunification services for 18 months, then, after the child was returned to the parents' care, family maintenance services were provided for an additional 12 months. The reunification services that were provided to the parents were extensive and included case management services, parent-child visitation, counseling and parenting classes, and alcohol and drug assessment and treatment, as well as assistance with mental health issues. The parents also attended many sessions of family preservation court.
Despite the extensive provision of reunification and family maintenance services to the parents for approximately two and one-half years, they failed to provide a safe and stable home for the child after she was returned to their care in March 2011. The evidence shows that in August 2011 the mother reported to the social worker that she had used cocaine and marijuana and had experienced severe depression after the death of her mother. Then, in February 2012, the father assaulted the mother by striking her on the face, causing a bloody nose and mouth, in the presence of the child. The mother initially failed to disclose the domestic violence in an effort to protect the father, who is currently incarcerated in state prison. In February and March 2012, the mother tested positive for marijuana and/or methadone on five occasions and missed several scheduled drug tests. In April 2012, the mother was homeless and staying in motels with her husband. Without the Department's knowledge, the mother had placed the child with a friend. Also in April 2012, the child's therapist reported to the Department that when the mother brought the child for her therapy appointment, the mother appeared to have a compromised mental state and was unable to manage the child.
We accordingly determine that substantial evidence supports the juvenile court's findings that the Department has provided or offered reasonable services to the parents (§ 366.21, subd. (g)(2)), there would be a substantial danger to the safety and well-being of the child if she were returned to the parents (§ 361, subd. (c)(1)), and reasonable efforts were made to prevent or eliminate the need for the child's removal from the parents (§ 361, subd. (d)). We will therefore deny the father's writ petition on that ground. Having reached this conclusion, we need not address the Department's request for dismissal of the writ petition.
IV. DISPOSITION
The petition for extraordinary writ is denied.
__________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR: ___________________
ELIA, ACTING P.J.
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MÁRQUEZ, J.