Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Elizabeth Kim, Referee. Los Angeles County Super. Ct. No.CK72972
Law Offices of David W. Clark and David W. Clark for Petitioner C.M.
R.M., in pro. per., for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Real Party in Interest.
KLEIN, P. J.
R.M. (mother) and C.M. (father) seek writ review of an order terminating father’s family reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26 as to T.M. (Cal. Rules of Court, rule 8.452.) We address the merits of each petition, conclude they lack merit and deny them.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
1. The initial assertion of dependency jurisdiction.
T.M. and his half-sibling, A.B., came to the attention of the Department of Children and Family Services (the Department) in May of 2008. Police officers went to mother’s home after receiving a report of drug activity in the home. The officers found two-month-old A.B. in an unacceptable living environment and detained her.
The social worker met with father and his girlfriend, J.M., at the home where they lived with T.M. and J.M.’s three children. Father indicated he had custody of T.M. every other week pursuant to a family law court order. Father admitted he was on parole for domestic violence involving mother and possession of a controlled substance. Father was attending anger management and a drug treatment program at National Council on Alcoholism and Drug Dependence, Inc. (NCADD).
The Department released T.M. to father and placed A.B. in foster care.
The jurisdiction report indicated father had a history of “lengthy periods of incarceration and involvement with the legal system” and mother had a history of drug abuse.
In July of 2008, the juvenile court sustained the dependency petition. The juvenile court ordered mother to attend drug rehabilitation, parent education and individual counseling, and ordered father to attend parent education and to comply with the terms of his parole.
2. Compliance with the initial case plan.
a. Mother.
Mother enrolled in a substance abuse program, parenting class and counseling. However, her attendance at counseling was inconsistent and in November of 2008, mother was caught attempting to use a device containing another person’s urine during a random drug test.
In January of 2009, mother enrolled in the inpatient program at Acton Rehabilitation Center but was discharged in March of 2009 and was not permitted to re-enroll because she admitted she was using drugs.
Mother missed five random drug tests between April and June of 2009, she tested positive for methamphetamine on April 28, 2009, and was not attending individual counseling or parenting class. Mother informed the social worker she had enrolled in a three-month outpatient NCADD program for substance abuse and individual counseling.
b. Father.
Father’s individual counseling case manager stated father “has continued to have difficulty... with group attendance and group cohesion. [Father] has been given several opportunities to deal with this issue and manages to do so for short periods of time but eventually reverts back to his old ways of being oppositional, disrespectful and negative which erodes... the entire group.”
In March of 2009, father’s girlfriend, J.M., gave birth to Baby M. Hospital staff reported father was “mixing up drinks and became intoxicated during the delivery.” Also in March of 2009, father’s parole officer reported father was a suspect in a robbery and was going to prison. Father told the social worker he had been “charged with a robbery that happened in Wal-Mart last month” and he intended to turn himself in.
3. The death of Baby M.
On June 1, 2009, Baby M. died while sleeping on a pillow in the same bed as father and J.M. A detective spoke to father at paternal grandmother’s home, where the family was living at the time. Father refused to drug test and, when Baby M. was pronounced dead at the hospital, father became violent and was arrested on the outstanding warrant. The Department placed T.M. in paternal grandmother’s care.
4. Adjudication and disposition of the subsequent petition.
On July 8, 2009, the juvenile court sustained the allegations of the subsequent petition, finding the evidence indicated father was intoxicated on the date of the infant’s death and that T.M. would be at risk of harm in father’s care. The juvenile court ordered father to participate in parent education, drug rehabilitation with random testing, and individual counseling to address anger management issues. The juvenile court ordered father’s visits to be monitored after he was released from custody.
Father and T.M. appealed the orders of July 8, 2009. In B217565, this court affirmed the jurisdictional findings and dispositional order.
5. Compliance with the case plan.
a. Mother.
A social report prepared for November 16, 2009, indicated mother’s visitation with A.B. and T.M. was inconsistent. Mother missed drug tests on August 5, August 21, and October 8, 2009, and on September 15, 2009, mother tested positive for methamphetamine. Mother refused to meet regularly with the social worker and paternal grandmother reported that mother made threats during telephone conversations. Paternal grandmother also reported she was threatened by a male regarding having T.M. in her custody. Mother also had a confrontation with the foster family agency social worker after mother failed to appear for a visit with A.B. On September 29, 2009, mother went to T.M.’s preschool and attempted to see her son in violation of the order for monitored visitation. The director of the preschool reported mother appeared to be under the influence and was unkempt.
On September 18, 2009, mother was terminated from her parenting class due to lack of attendance. Mother’s parenting class instructor advised the social worker that mother “has some serious issues.... I don’t think she is able to care for children....” Although mother told the social worker NCADD was providing individual counseling, the social worker learned it provided only substance abuse counseling.
A last-minute information report filed for November 16, 2009, indicated mother completed a parenting class with an online provider and submitted a progress report from NCADD which indicated mother had attended 12 Alcohol and Education sessions, 12 Group Discussion Sessions and 24 AA meetings. Mother also provided a letter from the Department of Mental Health stating she had commenced treatment on October 27, 2009. Mother stated she was taking Zoloft and Trazedone.
b. Father.
The social worker visited father twice at the Men’s Central Jail. Father expressed interest in regaining custody of T.M. but stated there were no programs in jail for him to join. On October 23, 2009, father was transferred to state prison in Lancaster. On November 18, 2009, father wrote the social worker requesting parenting material to read.
6. The juvenile court’s orders of November 23, 2009.
On November 23, 2009, the juvenile court continued father’s family reunification services but terminated family reunification services for mother and set a permanency planning hearing as to A.B.
7. Interim review report.
In December of 2009, the Department reported the social worker had contacted a case record technician at father’s prison who indicated father was in a reception area and was unable to attend programs. The director of programs for inmates indicated there were many programs available in prison and, after father had been classified, he would be transferred to an institution where he could participate in programs. Until then, father would be unable to participate in any programs.
On December 15, 2009, the social worker received a letter from father which indicated father remained in the reception area and was unable to attend programs. Father requested material on parenting, anger management and drug rehabilitation and indicated he hoped to regain custody of T.M.
On November 23, 2009, mother tested positive for cannabinoids.
8. Status review report.
A social report prepared for May 24, 2010, indicated father was released from prison on February 26, 2010, and was living with J.M. and her three children. On March 4, 2010, father provided proof of enrollment in parenting class. On April 6, 2010, father advised the social worker he was enrolled in an alcohol and drug education class at NCADD and he attended on a weekly basis. When the social worker advised father he is required to attend substance abuse counseling, father objected that substance abuse counseling costs $1,000.
On April 20, 2010, the social worker referred father to Promoting Safe and Stable Families (PSSF), which would pay for father to enroll in an outpatient substance abuse program. Two days later, the social worker received an E-mail from the Department headquarters stating father had been approved to receive substance abuse treatment under the PSSF program.
On May 7, 2010, father stated he had enrolled in an outpatient substance abuse program at NCADD through PSSF, he was employed part time as a security guard, he was attending parenting class and would complete the program on May 20, 2010, and he would soon start individual counseling.
After his release from prison, father had 12 monitored visits with T.M. Paternal grandmother reported the visits were “healthy” for T.M. and father spent quality time with the child. Paternal grandmother noted father appeared “calmer” and more patient and T.M. requested overnight visits with father. (CT 727
9. Orders of May 24, 2010; mother’s section 388 petition.
On May 24, 2010, father’s counsel argued father was in compliance with the case plan and asserted father completed an anger management program in prison. The juvenile court granted father’s request for additional family reunification services as well as his request for unmonitored visitation with T.M. and asked the Department to determine whether father’s prison course satisfied the anger management component of the case plan.
On May 25, 2010, mother filed a section 388 petition seeking liberalization of her visitation with T.M. and reinstatement of family reunification services. The petition alleged mother had completed her rehabilitation and she attends relapse prevention, Narcotics Anonymous meetings, parenting class, individual therapy, random drug testing and has had consistent visits of good quality with T.M. Also, mother had obtained her high school diploma and was attending college. Mother claimed extending reunification services would not jeopardize T.M.’s stability as the Department was providing reunification services to father.
The Department noted that, although mother had provided a report from NCADD which indicated mother completed the program on December 17, 2009, mother tested positive for marijuana in November of 2009, thereby indicating mother was not benefiting from the program. Also, although mother provided evidence of negative drug tests at NCADD, the Department could not accept these results because the tests were not random. Additionally, mother had not yet presented proof of completion of parent education. The report indicated that, although mother’s family reunification services had been terminated, the Department continued to monitor mother’s visits. The monitor indicated mother and T.M. mostly watch videos and mother becomes emotionally reactive very quickly.
On July 28, 2010, the juvenile court conducted a hearing on mother’s section 388 petition. After hearing testimony and argument, the juvenile court found T.M.’s best interests would not be promoted by the proposed change of order.
10. Social reports filed in advance of the final review hearing.
A social report prepared with respect to A.B. for November 22, 2010, indicated the juvenile court terminated mother’s parental rights as to A.B. on April 28, 2010. The report indicated A.B. continued to reside with her preadoptive parents.
A social report prepared with respect to T.M. indicated father was attending a substance abuse program, but not on a regular basis. He did not attend the group meeting twice a week as required and attended only 22 of 42 meetings. Father also was not attending 12-step meetings on a regular basis. NCADD indicated that although father completed the alcohol and drug program, his completion was not considered successful because he did not comply with all requirements. Also, father has anger issues which would no longer be tolerated.
Father tested positive for benzodiazepine on August 4, 2010. However, father had a prescription for it. Father also tested positive for alcohol (BAC.11 percent) on October 14, 2010 at Pacific Toxicology. When the social worker informed father of the positive test, father became upset, denied alcohol use and stated the social worker wanted to prevent reunification. Father later called the social worker and admitted he drank alcohol but claimed he did not drive and was not around Tyler. Father apologized for lying but stated he was scared. The social worker advised father the positive test result would have to be evaluated at a team decision making meeting (TDM).
At a TDM on November 4, 2010, father indicated the positive test result of October 14, 2010, was a one-time incident. J.M.’s family and paternal grandmother attended the meeting and reported observing positive change in father. The result of the meeting was a tentative decision to return T.M. to father on condition father received a positive progress report from NCADD.
On November 5, 2010, father’s NCADD counselor indicated she was aware of father’s positive test on October 14, 2010, and stated father also tested positive for alcohol at NCADD on October 20, 2010. Father expressed a desire to continue in the program for three more months but was informed his case would be closed.
On November 9, 2010, father’s therapist advised the social worker he could not discuss father’s individual counseling because father recently had rescinded the authorization for the agency to release information. When the social worker contacted NCADD regarding father’s positive test results, the NCADD representative stated father had rescinded his authorization for release of information. The social worker advised father via phone message the Department could not recommend return of T.M. without feedback from father’s counselor and his program.
On November 15, 2009, an emergency response worker from the Torrance office of the Department advised father’s social worker the Torrance office had received a referral regarding father and his girlfriend, J.M., indicating there was domestic violence in the home, the police had been to the home three or four times, and father “gets into fights with different people.” Also, father was arrested on November 8, 2010, on an outstanding warrant for driving without a license.
The report indicated father has not been honest with the Department as he did not disclose the positive test result with NCADD on October 20, 2010, or his arrest on November 8, 2010. The arrest report indicated police officers went to father’s home following a report that “two male subjects were fighting in front of the residence and a possible handgun was involved.” Upon arrival, father was standing on his front porch. Father stated he got into an argument with an unknown male. The police officers saw debris and broken glass inside the residence. Father stated it was only an argument and no handgun was involved.
On November 16, 2010, father told the social worker he rescinded the authorizations for release of information because he was concerned the Department would find he had tested positive for alcohol a second time and would not recommend return of T.M. When the social worker confronted father about not informing the Department of his arrest, father became agitated, cursed and hung up. Father called back a few minutes later, apologized and said he was only arrested on a traffic warrant. Father stated he would sign another authorization for NCADD to release information.
The report indicated father’s visitation with T.M. had been consistent and paternal grandmother reported the visits were “positive and productive as [T.M.] looks forward [to] having more visits with his dad.” The report indicated the Department liberalized father’s visitation to overnight effective July 23, 2010, and T.M. thereafter had 34 overnight visits with father.
Based on the foregoing, the Department concluded father continues to struggle with anger, he has failed to show he can maintain a sober lifestyle, he has lied to the Department and he has withheld important case information. Further, based on father’s positive test for alcohol, he no longer meets the requirements for unmonitored visitation. The Department requested an order for monitored visitation and recommended termination of father’s family reunification services.
11. The hearing of November 22, 2010.
On November 22, 2010, the juvenile court ordered monitored visitation for father and set a permanency planning hearing for T.M. on March 21, 2011. The juvenile court acknowledged father was attached to T.M. and that T.M. had lived in father’s home but stated it could not ignore father’s long history of drug and alcohol abuse. The juvenile court also was concerned about the incident that brought the police to father’s home and father’s rescission of the authorizations for release of information that had prevented the Department from obtaining father’s records.
CONTENTIONS
Mother’s writ petition asks this court to vacate the order setting a permanency planning hearing but makes no substantive contentions.
Although mother’s writ petition ostensibly is directed to both of her children, the order of November 23, 2010, only addressed T.M. The juvenile court terminated parental rights over A.B. on April 28, 2010. We therefore decline to address mother’s petition to the extent it seeks to raise issues related to A.B.
Father contends the Department failed to provide reasonable family reunification services and there was no substantial evidence T.M. would suffer detriment if returned to father.
DISCUSSION
1. Mother’s writ petition is subject to dismissal and lacks merit.
As indicated above, mother requests reversal of the order setting a permanency planning hearing. However, her pro se writ petition fails to allege any error committed by the juvenile court or state any factual grounds for her request.
Rule 8.452 of the California Rules of Court requires that a writ petition seeking review of an order setting a section 366.26 hearing include certain specified information. In particular, “[t]he petition must be accompanied by a memorandum” that provides a summary of the significant facts and supports each point with argument and citation to authority and the record. (Cal. Rules of Court, rule 8.452(a)(2) & (b).) A petition that fails to comply with these rules is subject to dismissal. (See Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 584; Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 157-158; Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005; Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956.)
The petition filed by mother includes no argument, reference to the record or citation of legal authority. Accordingly, the petition is subject to dismissal for failure to comply with California Rules of Court, rule 8.452. However, in view of the importance of the rights at stake and the directive that reviewing courts liberally construe such petitions and consider them on their merits when reasonably possible (§ 366.26, subd. (l)(4); rule 8.452(a)(1), 8.452(h)(1)), we reach the merits of mother’s petition.
Initially, we note that, although father’s family reunification services were terminated at the hearing on November 22, 2010, mother’s family reunification services were terminated a year earlier, on November 23, 2009. Because mother did not seek review of the order of November 23, 2009, her current challenge to the termination of her family reunification services is untimely. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
Mother’s notice of intent to file a writ petition indicated she would seek review of the order denying her section 388 petition on July 28, 2010, and the order setting of the section 366.26 hearing. However, a writ petition under California Rules of Court, rule 8.452 addresses only an order setting a hearing under section 366.26. Mother’s appeal of the order of July 28, 2010, denying her section 388 petition with respect to T.M. is pending in B226479.
In any event, mother’s petition lacks merit. Mother’s petition states she has made progress, lives in a stable home, will graduate from college in five weeks and has a stable career. However, these facts were asserted by mother as the basis of her section 388 petition filed in May of 2010, six months after her family reunification services were terminated. The record shows that, at the time mother’s family reunification services were terminated on November, 23, 2009, mother had received 18 months of reunification services. However, she was not in compliance with the case plan, her visitation was inconsistent and she refused to meet regularly with the social worker. Paternal grandmother reported mother made threats during telephone conversations. Mother missed numerous drug tests and tested positive for methamphetamine on September 15, 2009. On September 18, 2009, mother was terminated from her parenting class due to lack of attendance and mother’s parenting instructor opined mother was not “able to care for children....” On September 29, 2009, mother went unannounced to T.M.’s preschool and attempted to see T.M. in violation of the order for monitored visitation. Additionally, mother did not participate in individual counseling until October 27, 2009, less than one month prior to the hearing.
Under the circumstances, there were no exceptional circumstances that would have permitted the juvenile court to extend reunification services beyond the 18 month statutory limit. (In re N.M. (2003)108 Cal.App.4th 845, 852; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1793.)
Thus, putting aside the procedural deficiencies in mother’s petition, we conclude it is without merit.
2. Termination of father’s family reunification services.
Father contends the Department failed to provide family reunification services while father was incarcerated and, because he was incarcerated for the first seven months of the family reunification period, he only received nine months of services. He claims this was unreasonable under the circumstances and concludes the order setting the permanency planning hearing must be vacated.
The Department contends that, because father failed to appeal the finding of November 23, 2009, that reasonable family reunification services had been offered to that point, father may not in this appeal challenge the finding of reasonable family reunification services prior to November 23, 2009. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250-1252.) Given that father’s incarceration continued beyond November 23, 2009, we decline the Department’s invitation.
The Department is required to make a good faith effort to provide reasonable services responsive to the unique needs of each family. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) The Department must “preliminarily identify services available to an incarcerated parent. [Citation.]” (Id. at p. 1012.) The adequacy of reunification plans and the reasonableness of the Department’s efforts are judged according to the circumstances of each case. (Id. at p. 1011.) The burden is on the Department to show the reunification services provided to a parent were reasonable. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) “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 Misako R. (1991) 2 Cal.App.4th 538, 547.)
Substantial evidence demonstrates the Department made a good faith effort to provide reunification services to father and that the services were reasonable under the circumstances. The social worker visited father twice while father was in jail. After father was transferred to prison in Lancaster, the social worker contacted father’s prison regarding the availability of programs for father. Prison officials indicated, and father confirmed, that father was unable to participate in programs before father was classified. Nonetheless, the social worker maintained contact with father in prison through correspondence and sent father parenting, substance abuse and anger management material. Additionally, father completed an anger management program in prison.
After father’s release from prison, the Department arranged funding for father’s substance abuse program at NCADD through PSSF. The social worker maintained contact with father and arranged a TDM to discuss father’s positive alcohol test result and the possible return of T.M. to father’s care.
This evidence abundantly supports the juvenile court’s finding the Department provided father reasonable family reunification services. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
3. Substantial risk of detriment.
Father contends the finding T.M. would suffer detriment if returned to father’s custody was not supported by substantial evidence. Father asserts he was in compliance with the case plan. He notes that, after his release from prison, he visited T.M. and paternal grandmother described the visits as healthy and productive for T.M. The juvenile court granted father unmonitored visits and the Department permitted T.M. to visit father overnight. Father completed a six-month substance abuse program and an eight-week parenting class, he tested throughout the case plan and, although father tested positive for alcohol twice in October, he had never previously tested positive. Father claims T.M. was not put at risk by father’s failure to notify the Department of his second positive test for alcohol or his arrest on a traffic warrant. Although there were allegations of domestic violence and fights at father’s residence, the reports were unfounded and inconclusive. Father claims the evidence showed he was making substantial progress in his programs and his actions did not create a substantial risk of detriment to T.M. He notes the failure of a parent to benefit as much as possible from family reunification services does not indicate the child would be at substantial risk of detriment. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) Father concludes the order setting a permanency planning hearing must be vacated.
We review a finding that return of a child to the custody of his or her parent would be detrimental for substantial evidence. (V.C. v. Superior Court (2010) 188 Cal.App.4th 521, 529; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Here, although father completed programs, he tested positive for alcohol on October 14 and October 20, 2010. Thus, contrary to father’s assertion, he was not in compliance with the case plan. Father attempted to hide the positive alcohol test of October 20, 2010, by rescinding the NCAAD authorization for release of information to the Department. Father also failed to inform the Department he had been arrested. Thus, father not only had positive drug tests for alcohol but he also was deceitful with the Department.
Additionally, the Department received referrals regarding alleged incidents of violence at father’s home and the police were called to the home on several occasions. One incident involved father and his girlfriend, J.M., and another involved an unknown male. When the police went to father’s home in connection with the latter incident, they found broken glass and debris on the floor of the residence. In addition, NCADD reported father had anger management issues and the program would not tolerate further outbursts from father.
Because father failed to comply with the case plan, this alone was sufficient to support a finding of detriment. (§ 366.22, subd. (a) [failure “to participate regularly and make substantive progress in court-ordered treatment programs” constitutes “prima facie evidence that return would be detrimental”].) Additionally, the juvenile court reasonably could conclude that, to the extent father complied with the case plan, he had not achieved the plan’s objectives. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)
In sum, the evidence supported the juvenile court’s finding T.M. would be at substantial risk of detriment if returned to father.
DISPOSITION
The petitions are denied. Our decision is final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: CROSKEY, J., KITCHING, J.
The Department also contends father has waived the issues raised in his writ petition because he failed to raise them in the juvenile court. However, father’s contentions are based on his assertion the Department failed to carry its burden of proof to show it provided reasonable family reunification services or its burden of proving T.M. would be at substantial risk of detriment in father’s care. Where the Department has the burden of proof, a claim of insufficient evidence to support the juvenile court’s finding is not forfeited on appeal for failure to raise the issue in the juvenile court. “[T]o hold otherwise would dilute the Department’s obligation to provide the juvenile court with the necessary facts....” (In re Erik P. (2002) 104 Cal.App.4th 395, 399-400; accord, In re P.C. (2006) 137 Cal.App.4th 279, 288; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; In re Brian P. (2002) 99 Cal.App.4th 616, 623.) We therefore address the merits of both issues.