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Harvey v. Superior Court of Stanislaus County

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F043950 (Cal. Ct. App. Nov. 25, 2003)

Opinion

F043950.

11-25-2003

HARVEY C., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.

Lewis E. Wentz, for Petitioner. No appearance for Respondent. Michael H. Krausnick, County Counsel and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.


OPINION

THE COURT

Petitioner in pro per seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.

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

STATEMENT OF THE CASE AND FACTS

In June 2002, the Stanislaus County Community Services Agency (agency) took newborn T, the subject of this petition, into protective custody after T. and her mother, Cassie, tested positive for cocaine. Cassie has a long history of drug abuse which resulted in the removal of T.s half-siblings in March 2000. Cassie failed to reunify with them and, in February 2002, they were ordered into permanent placements. Petitioner, T.s biological father, also has a history of drug abuse. In 1995, he was convicted of a drug offense and given a seven-year prison sentence which he was still serving when T. was born.

The agency filed a dependency petition pursuant to section 300, subdivisions (b), (g) and (j) which the juvenile court sustained. At the dispositional hearing, the juvenile court ordered a plan of reunification for Cassie, but denied petitioner services because they were not in T.s best interest. (§ 361.5, subd. (a).) On December 2, 2002, petitioner filed a notice of appeal in this court challenging the juvenile courts dispositional findings and orders.

The appeal was filed under this courts case number F041996.

At the six-month review hearing, conducted on March 13, 2003, the court continued services for Cassie for another six months. Petitioner appeared out-of-custody and made an oral request pursuant to section 388 that the court modify its previous order and provide him reunification services. The court granted his motion and ordered petitioner to complete an anger management course, a parenting class, and outpatient substance abuse treatment, and attend two support meetings each week and submit to random drug testing.

On May 15, 2003, this court reversed the dispositional judgment and ordered the matter remanded for a new dispositional hearing in compliance with the Indian Child Welfare Act. According to the agency in its disposition/status review reports, petitioner initially complied with his case plan by attending domestic violence, anger management, and parenting classes. However, his participation dwindled and he failed to complete any of the programs. Moreover, it appeared petitioner and Cassie had relapsed. Petitioner was not participating in outpatient drug treatment or attending support group meetings and they both tested positive for cocaine multiple times in July 2003. The agency recommended the juvenile court enter a dispositional order for reunification services and terminate services for both parents for failure to comply with their case plans.

On August 26, 2003, the court conducted a dispositional hearing, as well as a six-month and 12-month review for petitioner and Cassie respectively. Petitioner testified, essentially confirming the agencys report of his noncompliance. He testified that he stopped attending his counseling sessions after he received a letter from the agency recommending that the court terminate reunification services. He admitted testing positive for cocaine and could not remember when he last participated in outpatient treatment. The matter was continued and concluded on September 4, 2003. After argument, the court entered new dispositional orders, including an order directing the agency to provide both parents reunification services. The court immediately proceeded to status review and found return of T. to parental custody would create a substantial risk of detriment to her. The court further found petitioner and Cassie were provided reasonable services but neither parent made substantive progress in their court-ordered treatment programs. Accordingly, the court terminated reunification services for both parents and set a section 366.26 hearing for December 11, 2003. This petition ensued.

DISCUSSION

In this one-line petition, petitioner claims he "successfully completed the majority of his services." We will infer from his statement that petitioner challenges the juvenile courts finding he failed to make substantive progress in his case plan, as well as the courts orders continuing T.s removal from his custody and setting the section 366.26 hearing. We find no merit to his claims.

At the six-month review hearing, the court must return the child to parental custody unless the court finds, by a preponderance of the evidence, return of the child would create a substantial risk of detriment to the childs safety, protection, or physical or emotional well-being. (§ 366.21, subd. (e).) Failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return of the child would be detrimental. (Ibid.) Further, the court may terminate reunification services and schedule a permanency planning hearing where the child, on the date of removal, was under the age of three years and the court further finds, by clear and convincing evidence, the parent failed to regularly participate and make substantive progress in the court-ordered treatment plan. (Ibid.) Finally, we review the juvenile courts order terminating reunification services for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the courts finding. (In re Brinson C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

In this case, drug rehabilitation was a key component to petitioners reunification with his daughter, yet he made no effort to attain sobriety. Instead, he continued using cocaine. Therefore, despite petitioners initial efforts to complete the other components of his case plan, substantial evidence supports the juvenile courts finding he failed to make substantive progress in his court-ordered treatment plan. Accordingly, we conclude the court properly ordered T.s continued removal and set the matter for a section 366.26 hearing. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


Summaries of

Harvey v. Superior Court of Stanislaus County

Court of Appeals of California, Fifth Appellate District.
Nov 25, 2003
No. F043950 (Cal. Ct. App. Nov. 25, 2003)
Case details for

Harvey v. Superior Court of Stanislaus County

Case Details

Full title:HARVEY C., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 25, 2003

Citations

No. F043950 (Cal. Ct. App. Nov. 25, 2003)