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Edward F. v. Superior Court

California Court of Appeals, Fourth District, Third Division
Mar 7, 2008
No. G039571 (Cal. Ct. App. Mar. 7, 2008)

Opinion


EDWARD F., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties In Interest. G039571 California Court of Appeal, Fourth District, Third Division March 7, 2008

NOT TO BE PUBLISHED

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Super. Ct. No. DP013963, Julian Bailey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

J. Michael Hughes for the Petitioner.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Party in Interest.

Law Office of Harold LaFlamme, and Linda O’Neil for the Minor.

OPINION

O’LEARY, ACTING P. J.

Edward F., seeks relief from the court’s order terminating family reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26) regarding his two-year-old son, Edward F., Jr. (hereafter referred to as EJ, the first name used throughout our record). Edward contends he is living a drug-free lifestyle and has substantially complied with his service plan. We find there is sufficient evidence supporting the court’s conclusion there was not a substantial probability EJ could be returned to Edward by the 18-month review date just two months away. We deny Edward’s writ petition.

All further statutory references are to the Welfare and Institutions Code.

I

Facts

In early August 2006, EJ’s mother was arrested and incarcerated. With mother’s consent, an Orange County Sheriff Deputy released EJ to an unrelated temporary caretaker. Two weeks later, EJ was taken into protective custody after the caretaker contacted the Orange County Social Services Agency (SSA) and reported he could not longer provide care for EJ.

Because EJ’s mother does not petition for relief, facts concerning her will be limited to those relevant to Edward’s petition.

EJ’s mother has two children living with their respective fathers, and two other children who were adopted after her parental rights were terminated for failure to complete reunification plans. She has a long history of unresolved substance abuse problems and domestic violence. She was pregnant with her sixth child.

Edward was not an appropriate placement option. A restraining order prohibited Edward from having contact with EJ’s mother, EJ, and his two daughters from a prior marriage (who are living with their legal guardian/paternal aunt). Edward was on probation for domestic violence and for possessing a controlled substance (methamphetamine). Due to a recent drug relapse, he was enrolled in the CARE treatment program as an alternative to jail time. At the detention hearing held at the end of August, the court determined there was a substantial risk to return EJ to his parents’ care. It ordered monitored visitation, drug testing, and other necessary reunification services for the parents.

In the next report, filed at the end of September, the social worker noted Edward had successfully petitioned the court to modify the restraining order to permit visitation with EJ. Edward admitted he had experimented with marijuana, cocaine, alcohol, and methamphetamine. He first used marijuana after high school in 1985 and began using methamphetamine in 1989. Edward stated his prior 10-year relationship with the mother of his two daughters was violent, and in 1998, a child abuse report was substantiated for emotional abuse and general neglect due to domestic violence. In 2004, he was arrested for domestic violence against EJ’s mother and for possessing methamphetamine. Despite the restraining order, he maintained contact with EJ’s mother, explaining, “‘I really loved her a lot to risk it.’” Edward had not visited EJ since February 2006.

The social worker recommended no family reunification for EJ’s mother due to her failure to reunify with two other children and her history of chronic substance abuse. The social worker was concerned about Edward’s resistance to accepting services. In the beginning of September, he told the social worker he was too busy with work to enroll in counseling or parenting education. Edward said he would sign the referral forms in two weeks. When Edward was reminded of the concurrent plan for the child, he replied “‘I have a year to take care of this.’” He initially indicated he was willing to drug test for the probation department, but not for SSA. On September 20, Edward signed referral forms for counseling, parenting education, and agreed to SSA’s drug testing schedule. He stated if EJ was not returned to his care at the next court hearing, he would like to see the child placed with a paternal aunt. Edward was authorized to have twice-weekly monitored visits with EJ for four hours.

An addendum report, filed in early November, revealed Edward had been arrested and pled guilty to assaulting an adult male. He was sentenced to 60 days in jail and ordered to enroll in an anger management program. Before his arrest, Edward visited EJ, and “interact[ed] appropriately and affectionately with the child.”

At the jurisdiction/dispositional hearing, Edward pled no contest to an amended petition that described his unresolved history of substance abuse and domestic violence, his criminal history, and his failure to complete a substance abuse treatment program. The court ordered EJ declared a dependent child under section 300, subdivision (b) and (j). The court determined reunification services would be provided to Edward, but not EJ’s mother.

Edward’s plan required him to: (1) show an ability and willingness to have custody of EJ; (2) stay sober and comply with all required testing; (3) demonstrate progress in a domestic violence prevention plan, including a 24-week domestic violence/anger management class; (4) complete a parenting class; (5) participate in counseling; (6) participate in a substance abuse 12-step program such as narcotics anonymous (NA) or alcoholics anonymous(AA); and (7) obey the law and stay out of jail. He was authorized once-weekly visitation while in jail, and twice-weekly monitored visitation upon his release.

In the April 2007 report, prepared for the six-month review, the social worker recommended reunification services continue. Edward was living with his mother, working full-time in the mortgage industry. The social worker reported Edward had “become fully engaged in his case plan activities and appears motivated to work to have [EJ] returned to his care. He appears eager to change the destructive ways of his past, and is working to develop new coping skills and stronger and healthier avenues for social support. He visits consistently with the child, and is motivated to develop a strong relationship with him. If [Edward’s] current high level of participation and success continues, the undersigned hopes to begin overnight visitation . . . in May 2007, with the possibility of beginning a 60-day trial visit in June 2007.”

The social worker reported Edward was attending counseling, a batterer’s treatment program, and weekly NA/AA meetings. He claimed he was attending 12-step meetings, but did not provide proof. He completed a six-month substance abuse treatment program through CARE counseling and was consistently testing negative. His referrals to parenting classes were pending. He was affectionate with EJ during visits, and interacted appropriately with his son. However, one criticism of Edward was that he ignored the caregiver’s requests to bring healthy food options for EJ during visits. The social worker observed Edward brought tacos, french fries, and a milk shake during one visit.

An addendum report, prepared on May 10, 2007, stated Edward had twice tested positive for ethanol. He claimed he started drinking due to feeling stressed and overwhelmed. He explained one of the mortgage companies he worked for had declared bankruptcy. Edward’s therapist stated Edward had “significant business deals fall through and that he started drinking to cope.” The therapist also revealed Edward was contemplating a reconciliation with EJ’s mother, and indicated he wanted “her to join him for some conjoint counseling sessions.”

In a report prepared a few days later, the social worker said she questioned Edward about his relationship with EJ’s mother. Edward believed EJ needed his mother, and he wanted to work with her on their communication skills in counseling. The social worker informed Edward that continuing a relationship with EJ’s mother might bar his reunification with EJ because she was not participating in her case plan. She told Edward that he needed to protect EJ from his mother.

The social worker spoke again with Edward’s therapist, who opined an alcohol treatment program would not be appropriate because Edward had a cynical attitude about drug treatment programs. The therapist stated Edward was doing well in counseling and they were working on relapse prevention.

At the six-month review hearing, in May 2007, the court continued the case for another six months. Added to Edward’s case plan was the requirement he obtain and maintain a stable and suitable residence, as well as demonstrate his ability to provide adequate care for EJ’s special needs.

At the end of June, the social worker reported Edward had still not enrolled in a substance abuse program. Edward said he intended to start KC Services domestic violence program in Garden Grove. He stated he could no longer afford his individual counselor, and he requested a referral to one of SSA’s contracted providers.

The social worker stated she was extremely concerned about recent allegations by EJ’s mother charging Edward with giving her two black eyes. Edward denied the assault and said her false allegations made him want to get a divorce. After hearing EJ’s mother’s claim, the social worker required visits between Edward and EJ to be supervised. The social worker indicated the restrictions might be lifted if Edward engaged in a substance abuse program and found a new therapist. It was reported visits were otherwise regular and EJ appeared to be attached to Edward. The social worker noted Edward was becoming frustrated and discouraged. She hoped he would work on staying sober and providing a stable home for EJ.

In the report prepared for the 12-month review hearing, filed October 2007, the social worker recommended termination of reunification services. Edward was still living with his mother, and his job in the mortgage industry had become unstable. He had not received any income since June 2007. Edward stated he was uninterested in finding a different line of work or “working a job that had no room for future growth.”

The social worker concluded Edward had engaged in some, but not all, of his case plan activities. She was concerned that the one aspect he refused to address was his substance abuse problem. He completed the parenting program and consistently participated in weekly counseling. He enrolled in a domestic violence program, but was terminated in August for excessive absences. The social worker was able to get him reinstated in September. Edward submitted diluted drug tests on June 11 and 18. He missed tests on July 23, August 6, 16, and September 17. He could not provide proof of attendance at a 12-step meeting, and admitted he does not consistently attend. Although Edward received referrals in May 2007, he waited until September 17 to enroll in a substance abuse treatment program (just one month before the 12-month hearing). The social worker expressed concern that Edward would likely return to substance abuse in times of stress due to his refusal to address the problem. She opined addressing his substance abuse “is fundamental to [Edward’s] ability to safely care for [EJ].”

In addition, the social worker noted Edward had not worked to educate himself about EJ’s special needs. Two-year-old EJ had significant developmental delays, especially in the areas of language and gross motors skills. For three hours a week he attended speech therapy and physical/occupational therapy. In June, he started food therapy because he had become an excessively picky eater putting him at risk for nutritional deficiencies. By September, it was reported he was making progress in all areas, and was now willing to try more foods. The social worker stated she had repeatedly encouraged Edward to contact EJ’s caregivers to discuss the child’s therapies and his progress. She opined Edward needed to understand EJ’s special needs if he wanted to eventually care for the child. Instead, Edward elected to allow the caregivers to handle and monitor all of EJ’s needs without his involvement. Initially, he was very unsupportive of the food therapy program and would sneak forbidden foods to EJ. The social worker eventually restricted Edward from bringing any foods to his visits.

In addition, the caregivers reported Edward becomes “easily frustrated when interacting with [EJ] and when [EJ] require[d discipline.] He has been encouraged to participate in the child’s daily tasks, such as putting him down for his nap, but quickly gives up when the child resists him. He appears to have difficulty in taking direction from the child’s caregivers when they offer advice for how to intervene with the child.” When the social worker questioned Edward about this report, he replied he wanted his limited time with EJ to “be about having fun, not about discipline.”

An addendum report filed in early November disclosed Edward was participating in an outpatient substance abuse program. Edward said he found an online program called Rational Recovery that he thought would be beneficial. He did not want to attend 12-step meetings because he did not find them to be helpful. He said the Rational Recovery program provided a better alternative to attending meetings. He was testing negative, except for on September 6 he tested positive for ethanol and on October 11, the test recorded “no result[.]”

We grant the motion to augment the record with this addendum report.

At the 12-month review hearing on November 13 and 14, the social worker testified Edward was currently complying with his case plan. She confirmed much of the information contained in her reports. She concluded that to have EJ returned, Edward would need to continue his substance abuse program, batterer’s treatment program, counseling, and drug testing. She recognized Edward indicated he was willing to do all those things. However, she opined services should be terminated because EJ would not be returned to Edward within the 18-month time frame.

Edward testified he has participated in the online program called Rational Recovery for the past four weeks, instead of attending AA classes. He spent a half-hour every day reading past testimonials and other information on the Web site. He also attended individual therapy on Mondays. When asked to describe the goals of his counseling, Edward explained there was a total of three phases, and eight sessions per phase. He was in the first phase (having completed six of the eight sessions), which dealt with knowing the triggers and how to better cope with his recovery plan. Edward said he also talked to a friend who attends the 12-step programs and had offered to be his sponsor.

In describing his parenting classes, Edward testified he had trouble getting EJ to comply with his requests. He explained, “I’m a pushover when it comes to being a parent. I don’t like to see my children cry or hurt, something I need to work on.” He was willing to participate in another parenting class if required by SSA. He believed things would be different if parenting were on his schedule. He believed EJ enjoyed their now monitored visits for six hours per week, divided among four days. He and EJ were mutually affectionate and EJ called him “daddy.” Edward understood SSA believed EJ was developmentally delayed, but Edward opined, “I think he’s coming around already. As far as the delays are going, I think it was just [he needed] his own time of learning at his own pace.” Edward said he was willing learn more about EJ’s special needs, to start practicing disciple, and make EJ eat healthy foods.

Edward admitted to having issues in the past with domestic violence. When Edward was asked what he learned from his domestic violence program that would keep him from becoming involved in that kind of relationship again, he replied, “Oh, good question. I’ve been working on that one. Basically I [sic] got to be a little more pickier of the women I’m going to be with. And not so much them, but I’m looking for a nice Christian girl that also has a job, would . . . be nice, a career, that’s at my level, and basically that has her cards all stacked up nice and neat.” Edward was then asked if he believed he had any responsibility for the domestic violence in his past, he answered, “I’m not blaming the women entirely. Most of really what happened was confusion. And when you’re drunk or you’re high, the devil brings confusion.”

Edward said he regularly drug tests. He explained he tested positive in September 2007 because he drank three quarts of beer to celebrate a football game victory. His last drink prior to that was in April or May 2007 at his sister’s wedding. He claimed the diluted test was due to the fact he tested for his probation officer earlier that day and he drank more water to test again. He missed tests because he had no money for gas. Edward planned to not drink in the future by keeping busy and staying away from people he used to drink with. He recognized his triggers for drinking were financial troubles and “just myself.”

Edward said he was willing to comply with all aspects of his case plan. When asked why he waited until September to begin a substance abuse treatment program, Edward replied, “I was doing everything in sequential order, trying to balance out finances and a schedule, and that was my main reason. I knew I had to start it sooner or later, and I just held off until that time.”

The court considered the arguments of counsel, including minor’s counsel who pointed out there was only three months until the 18-month review hearing. Like county counsel, minor’s counsel argued Edward had not made significant progress in resolving the problems leading to the child’s removal from the home, namely, domestic violence and substance abuse. Counsel argued Edward was still in the early stages of recovery. His decision to avoid women to deal with domestic violence was troubling. His relapse with alcohol just two months prior, and his reluctance to start a treatment program, indicates a lack of capacity and ability to stay sober.

The court agreed and ordered termination of reunification services. The court concluded Edward lacked insight into the depth of his problem and lacked credibility when he testified about his substance abuse. It concluded, “It’s reasonable to believe, [Edward] was and continues to be an alcoholic who is unable to stop drinking[]” and there is no substantial probability he could complete the service plan by the 18-month review date in three months (February 2008).

II

Legal Discussion

“When a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, as [EJ] was, reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(2).) The child’s status, and the question whether services should be extended for an additional period, must be reconsidered no less frequently than every six months. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998 . . . .) The absolute maximum period for services is 18 months (§ 361.5, subd. (a)), provided the court determines at both a six-month review hearing and a 12-month review hearing that continuation of services is warranted (see § 366.21, subd. (e) [establishing procedures for the six-month review hearing]; id., subds. (f), (g) [establishing procedures for the 12-month review hearing]).” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 (Tonya M.).)

At the 12-month hearing, the court may continue the case and provide additional reunification services “only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . .” (§ 366.21, subd. (g)(1).) In the case before us, the court correctly considered the likelihood of reunification in the time remaining until the 18-month review hearing, even though it was less than six months. (Tonya M., supra, 42 Cal.4th at p. 843.)

In order to find a substantial probability that a child will be returned to the physical custody of his or her parent justifying continued reunification services, the court is required to find all of the following: “(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).)

“We affirm an order denying reunification services if the order is supported by substantial evidence.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.) “The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)

III

Analysis

Edward met the first prong of the test because he regularly and consistently visited EJ. He challenges the court’s conclusion he did not meet the second prong of section 366.21, subdivision (g)(1) [make “significant progress in resolving problems that led to the child’s removal from the home”]. Edward argues, “Substantial probability is not the same thing as certainty. A parent is not required to demonstrate ‘perfect compliance’ in order to meet the regular participation standard and earn another six months of family reunification services.” He points to all the classes he completed and the evidence supporting his argument. He seeks to minimize his relapses with alcohol as being “not a regular situation.”

However, as the trial court determined, the evidence also shows Edward continues to be an alcoholic, and cannot stop drinking. Adopting a permanent substance abuse free lifestyle was a crucial aspect of his plan. This one issue spilled over into most of his other troubles, including his propensity for domestic violence. After failing to drug test negatively on multiple occasions throughout the spring and summer of 2007, he waited until September to begin a substance abuse program. He admitted drinking three quarts of beer in early September after a football game. This was only two months before the 12-month review hearing. The reason he gave for waiting to enroll in a program and address his addiction was simply not credible.

By the time of the hearing, Edward admitted he was only in the beginning stages of treatment with his counselor. The program would not likely be completed within the remaining three months of additional services potentially available before the 18-month cutoff. Edward’s previous completion of another substance abuse program (CARE counseling) had not been successful. He tested positive for ethanol the following month.

There was other evidence showing Edward was not committed to addressing his substance abuse issues and failed to appreciate the seriousness of his addiction. He admitted his triggers for drinking were financial, yet he did not want to look for a more stable job outside the volatile mortgage industry. During the 15 months of services, he barely attended any of the recommended 12-step NA/AA meetings and was highly cynical of their usefulness. His decision to simply read testimonials from an online service, rather than follow the plan outlined by the court and SSA showed a lack of willingness to do the hard work necessary for a permanent change. His somewhat lackadaisical approach to addressing this crucial aspect of his reunification plan justified terminating services. Sadly, Edward focused on the easier aspects of his case plan and should have put more effort into addressing his alcoholism.

Although we need not go any further in reviewing the court’s ruling, we briefly note there was evidence to support the court’s conclusion Edward had not met the third prong; i.e., Edward had not demonstrated “the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).) As stated above, Edward had only begun to address his alcoholism, he was uncomfortable and unready to discipline his two-year-old son, he did not appreciate the importance of the therapy EJ was receiving for his special needs, and his plan to find the right woman so as to avoid future domestic violence indicates he had not learned much from the classes/counseling he attended. Edward had not earned income since June 2007, and he had been living with his mother since January 2007.

Thus, while we commend Edward for attempting to improve his life and appreciate he has a good relationship with EJ, the juvenile court could not disregard the evidence Edward was still resisting treatment for his alcoholism, and appeared to have very limited awareness of his child’s basic needs. The court reasonably questioned Edward’s current ability to provide for EJ’s safety, protection, well-being, and special needs.

IV

Disposition

The writ petition is denied.

WE CONCUR: MOORE, J., ARONSON, J.


Summaries of

Edward F. v. Superior Court

California Court of Appeals, Fourth District, Third Division
Mar 7, 2008
No. G039571 (Cal. Ct. App. Mar. 7, 2008)
Case details for

Edward F. v. Superior Court

Case Details

Full title:EDWARD F., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 7, 2008

Citations

No. G039571 (Cal. Ct. App. Mar. 7, 2008)