Opinion
H045666
05-31-2018
D.J., Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; MONTEREY COUNTY DEPARTMENT OF SOCIAL 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17JD000105)
S.J. was born on June 30, 2017 addicted to opiates. The Monterey County Department of Social Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) on July 17, 2017, alleging that S.J. was in danger based on the failure of Mother, T.V.B., and Father D.J. to protect her.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the six-month review hearing, the juvenile court terminated reunification services for both parents pursuant to section 366.21, subd. (e)(3), and set the matter for a selection and implementation hearing (§ 366.26).
Father petitions this court for an extraordinary writ, arguing that the juvenile court erred by refusing to extend reunification services for six months. We deny the petition.
Mother has not filed a writ petition in this case.
I. STATEMENT OF THE FACTS AND CASE
A. The Section 300 Petition
The Department's section 300 petition alleged that Mother tested positive for marijuana and opiates when S.J. was born on June 30, 2017. S.J. began experiencing "high levels of withdrawal symptoms" and needed to be placed in the neonatal intensive care unit immediately after her birth. Mother admitted that she used heroin "3-4 times a day" when pregnant and that she last used heroin 4 days before S.J. was born.
Mother and Father reported that they were living in a tent in San Luis Obispo. Father was also a drug user, admitting that that he had last used heroin a month and a half prior, and methamphetamine the week prior to S.J.'s birth. Father reported that Mother has significant mental health issues, and the paternal grandmother reported that Father suffers from mental illness as well.
S.J. was administered Clonidine and Morphine in the hospital to treat her withdrawal symptoms including "crying, fast breathing, high temperature, hypertension, irritability, feeding poorly, and inability to sleep more than 2 hours."
Because of the parents' ongoing substance abuse and concerns over the parents' mental illness and self-medicating with narcotics, the Department could not establish a safety plan for S.J.'s care if she remained with the parents. The section 300 petition sought court intervention, supervision and out-of-home placement to ensure S.J.'s safety and well-being.
On July 18, 2017, the juvenile court ordered S.J. detained, and set the matter for a jurisdictional/dispositional hearing on August 29, 2017. On that date, the petition was sustained and S.J. was adjudicated a dependent of the court. The court ordered that S.J. be removed, and that reunification services be provided to both parents.
The six-month review hearing was set for February 27, 2018. On that date, the parents requested a contested six-month review hearing, which was set for March 19, 2017.
B. Six-Month Review Report
The Department filed the six-month status report on February 15, 2018. The report recommended that S.J. continue to be a dependent of the court, that family reunification services be terminated as to both parents, and that the matter be set for a selection and implementation hearing.
During the six-month period between the sustained section 300 petition and the status report, the parents did not consistently participate in their service plan. Father failed to complete a family mental health assessment with Children's Behavioral Health. Father also failed to enroll in a parenting class during this review period. Father failed to drug test on six separate dates during the review period. Father completed a mental health screening at a clinic in San Luis Obispo, but did not meet the criteria for specialized mental health treatment.
Like Father, Mother did not complete a family mental health assessment with Children's Behavioral Health, and she failed to enroll in any parenting class or parent education group. Mother claimed to have enrolled in a drug and alcohol treatment outpatient program, but the Department had no confirmation of Mother's participation. Mother failed to drug test on six separate dates during the review period. Mother did not maintain contact with the Department regarding progress with the programs and services provided. Mother participated in an intake assessment for Mentor Moms in Monterey County, but she never made contact with her assigned mentor mom.
The parents missed scheduled meetings with the social worker (September 8, 2017, October 13, 2017, December 7, 2017). On January 18, 2018, the parents failed to show up for a child and family team meeting. The parents also missed visits with S.J. throughout the review period (August 15, 2017, November 10, 2017, December 29, 2017). On other occasions, visits were cancelled as a result of the parents' refusal to complete drug tests in advance of the visits (November 17, 2017, January 19, 2018, February 9, 2018).
The report stated that the parents were homeless in San Luis Obispo and were unemployed. The parents did not want to move to Monterey County and receive family reunification services there, because they believed that they had more opportunity for housing and jobs in San Luis Obispo.
On January 12, 2018, S.J. was assessed by MCSTART. The assessment stated that S.J. had difficulty with self-regulation, was easily over stimulated, and had separation anxiety from her grandmother, who was her caregiver. The caregivers represented that S.J. was doing well with them, was strong and beginning to crawl. When the parents visited with S.J., she would cry and was difficult to console, which caused the parents to become frustrated and irritated.
Monterey County Screening Team for Assessment, Referral and Treatment of Substance-Exposed Children.
The conclusion of the report was that returning S.J. to her parents would create a substantial risk of detriment to her safety, protection, or emotional well-being. The social worker found that the parents had failed to make adequate progress in the reunification plan to reunify with S.J. The Department recommended that reunification services be terminated as to both parents.
C. Contested Six-Month Review Hearing
At the contested hearing on March 19, 2018, the Department submitted the case on the six-month review status report.
Father testified on his own behalf. He stated that he was homeless, unemployed and that he was living in his car. He testified that he had been participating in a parenting program in San Luis Obispo, but he had not provided the social worker any proof of his participation despite her requests. Father stated that he had attended AA and NA meetings, but had no proof of this. Father did not have a sponsor in AA or NA, and despite claiming that he had been sober for six months, he did not know his sobriety date. He also claimed to have attended a parent group for months, but had no proof, nor could he provide the name of the counselor who led the group. Father testified that he had not completed his required drug tests because he was not "comfortable" with doing so. He admitted that he had lost several opportunities to visit with S.J. because he had refused to take the required drug test prior to the visitation time. Father claimed that he could easily find a job, but remained unemployed. Despite having no proof of any of his efforts, Father testified that he believed that he had done all of the things that were required of him in his reunification plan.
Mother testified that she had also been participating in drug programs in San Luis Obispo County, and that she had regularly completed drug tests, but that all of the test results were in San Luis Obispo County. Mother stated that all of the tests were positive for marijuana because she smoked it for anxiety every day since she was 13. She testified that she had attended AA/NA meetings, and that she had cards proving that she had attended, but that she did not have the cards with her at the hearing. She stated that she did not have a sponsor for the program. Mother represented that she had just signed up for online parenting classes.
At the conclusion of the contested six-month review hearing, the court stated: "the failure of the parents to participate regularly and make substantive progress in court ordered treatment programs, shall be deemed prima facie evidence, that return of the child would be detrimental. [¶] The court has had the opportunity to review the case plan and the parents' lack of progress in being able to move forward with that case plan, to the degree that it would seem that any additional services would be helpful to them in their reunification progress. [¶] But it is clear to this court, having now heard from the parents, that there are aspects of the case plan that they're completely unwilling to participate in at this time."
The court terminated reunification for both parents pursuant to section 366.21, subd. (e)(3), and set the matter for a selection and implementation hearing (§ 366.26).
Father filed a petition for extraordinary writ arguing that the juvenile court erred when it refused to extend his reunification services for six months because he had substantially complied with the service plan.
II. DISCUSSION
A. Reunification Services
" 'Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." [Citation.]' (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Reunification services are typically understood as a benefit provided to parents, because services enable them to demonstrate parental fitness and so regain custody of their dependent children. [Citation.]" (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.)
Reunification services for children under the age of three on the date of initial removal are presumptively limited to six months from when the child entered foster care. (§ 361.5, subd. (a)(1)(B); M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176 (M.V.).) This is because the " ' "unique developmental needs of infants and toddlers" ' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process ' "in cases with a poor prognosis for family reunification." ' [Citation.]" (M.V., supra, at p. 175.)
At the six-month review hearing, the juvenile court must order the return of the child to his or her parent unless it finds that doing so "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1).) A parent's failure "to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) If the child was under age three 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." (§ 366.21, subd. (e)(3).) If, however, the court finds 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, the court shall continue the case to the 12-month permanency hearing." (Ibid.)
B. Standard of Review
"We review the juvenile court's findings for substantial evidence, and the juvenile court's decisionmaking process based on those findings for abuse of discretion. [Citation.]" (San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 223; see also In re Jasmine C. (1999) 70 Cal.App.4th 71, 75 [substantial evidence review applies even when juvenile court's standard of proof is clear and convincing evidence].)
We review the record in the light most favorable to the court's findings, and we draw all reasonable inferences from the evidence to support the disposition. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
C. Progress in Reunification Service Plan
Father's sole argument in his writ is that the court erred in refusing to extend reunification services for six months, because he asserts that he had made substantive progress in his service plan. (See § 366.21, subd. (e)(3).) Father does not argue that the Department failed to provide reasonable services, nor does he assert that S.J. could have been safely returned to his care.
The only evidence that Father presented in the juvenile court to show that he had made substantial progress in his service plan was his testimony at the six-month review hearing. He stated that he had participated in Alcoholics Anonymous, but he had no proof that he had attended meetings or that he had a sponsor for the program. He claimed that he had attended a parent group for months, but he had no proof of his participation and did not know the name of the group leader. He admitted that he did not submit to any drug tests because he did not feel comfortable doing so. He represented that he had six months of sobriety, but he did not know his sobriety date. Father stated that he could easily find a job if he wanted one, but he remained unemployed.
Based on the Department's report, and Father's testimony at the six-month review hearing, the court properly found by clear and convincing evidence that Father had "failed to participate regularly and make substantive progress in a court-ordered treatment plan . . ." (§ 366.21, subd. (e)(3).) The reunification service plan in this case included Father participating in a Family Mental Health assessment, which he did not do, and to submit to drug tests, which he refused. In addition, the plan required Father to complete 90 12-step meetings, obtain a sponsor in the program, and provide proof of this to his social worker. Father testified that he attended the meetings, but admitted that he did not have a sponsor, and did not have proof of his participation. The service plan provided for weekly supervised visitation with S.J.; however, Father refused to submit to drug tests that caused him to miss scheduled visits with S.J.
We find that there is substantial evidence to support the juvenile court's conclusion that Father had not made sufficient progress on the service plan, and that this was prima facie evidence that return of S.J. would be detrimental. The court did not abuse its discretion in terminating reunification services and setting the matter for a section 366.26 hearing after the six-month review hearing. (See § 366.21, subd. (e)(3).)
III. DISPOSITION
Father's petition for extraordinary writ is denied.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.