Opinion
B193484
12-11-2006
In re AARON A. and GABRIEL A., Minors. MILTON A., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
John Nese for Petitioner. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Judith A. Luby, Senior Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services. Jennifer A. Waxler for Real Parties in Interest Aaron A. and Gabriel A.
Petitioner Milton A. seeks extraordinary writ review (Welf. and Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 38.1) of the juvenile courts order, made at the conclusion of the statutory limit for reunification (§ 366.22), setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his two dependent children, Aaron A. and Gabriel A. Milton A.s petition is opposed by the Department of Children and Family Services (Department) and also by the children, who have joined in the Departments response. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
In February 2005, a few days after Gabriel was born with opiates in his system, the Department filed a petition under section 300 seeking to declare him and two-year-old Aaron court dependents. The petition alleged the childrens mother (S.K.) had a history of drug abuse and was a current user of cocaine and opiates, and Milton A. had a criminal history including a conviction of having sex with a minor. S.K., who tested positive for opiates and cocaine when Gabriel was born, denied using drugs and refused to disclose Aarons or Milton A.s whereabouts. On February 2 the court ordered the children detained, and on February 7 it issued a protective custody warrant for Aaron. The following day S.K. relinquished Aaron to the Department.
In its report for the jurisdiction and disposition hearing, the Department indicated S.K. and Milton A. had not been interviewed because they could not be located. Milton A.s criminal history included convictions of unlawful sex with a minor, possession of narcotics, accessory to burglary, resisting a police officer and trespass, and numerous arrests for various other crimes.
On March 2, 2005 the court sustained the dependency petition upon S.K.s and Milton A.s pleas of no contest. The court ordered the Department to provide family reunification services to both parents, ordered Milton A. to participate in a parent education program, and granted him monitored visitation with the children three times per week. The court continued the case to August 31, 2005 for the six-month review hearing. (§ 366.1, subd. (e).)
On April 6, 2005 the Department reported that in February Milton A. had caused a disturbance at the hospital when he would not allow the social worker to monitor his visit with Gabriel, became belligerent, and stormed out of the hospitals neonatal intensive care unit. S.K. later told the social worker that Milton A. had "an anger issue." In a subsequent meeting, Milton A. told the social worker that he did not need a monitor for visits, was not bashful, and would not be intimidated. When asked by the social worker if he had enrolled in a parenting program, Milton A. would not answer and stated he would answer to the court and not the social worker. Milton A. thereafter failed to appear for several scheduled visits with the children.
The Departments report for the six-month review hearing indicated the children had been deemed adoptable and were doing well in a prospective adoptive home. Both parents had been attending one-hour weekly visits with the children monitored by the social worker, and had told the social worker they were staying with friends. Milton A. had enrolled in parenting classes on July 19 and attended the initial class that day, but missed the next four classes. In May S.K. had tested positive for drugs. The Department recommended the court terminate reunification for both parents and set the matter for a hearing to select a permanent plan. (§ 366.26.)
On August 31, 2005 the court continued the six-month hearing to September 30. In a supplemental report for the continued hearing, the Department indicated Milton A. had not informed the social worker of his compliance with his case plan, but the parenting program in which he had enrolled reported he had attended five of twelve classes. On September 30 the matter was put over to October 26 for a contest.
In a supplemental report for the contested hearing, the Department indicated S.K. had tested positive for amphetamines on October 20. Milton A. would not complete a parenting program for another two months. The Department recommended termination of reunification for both parents (§§ 361.5, subd. (a)(2), 366.21, subd. (e), 3rd par.), citing S.K.s relapse to drug use, both parents lack of suitable housing for the children, and Milton A.s failure to complete his parenting program. Over the Departments objection, the court extended reunification for an additional six months and continued the case to March 1, 2006 for the 12-month review hearing.
On December 12, 2005 the Department applied to the court for an order granting discretion to liberalize the parents visitation, indicating S.K. had maintained sobriety since October 20 and Milton A. was employed on a full-time basis and attending parenting classes, but also expressing concern about the parents interactions with each other and Milton A.s inability to manage his temper. The court gave the Department direction to liberalize visits.
In its report for the 12-month review hearing, the Department stated S.K. had again tested positive for drugs on December 30, 2005. Milton A. had reported that he had completed a parenting program, but had not submitted proof to the social worker. Milton A. had visited the children sporadically, and during the visits he showed little interest in the children, was critical and demeaning of the mother in front of the children, spoke negatively of the prospective adoptive mother, and had been belligerent with the social worker. On March 1, 2006 the court continued the matter to March 21 for a contested hearing at the parents request.
During one visit, when Aaron called the prospective adoptive mother "mommy" Milton A. told Aaron she was his "fake mom." When chastened by the social worker, Milton A. said, "I dont care . . . . If he was calling somebody `daddy I would beat him up." Milton A. also referred to Gabriel as "spoiled" and a "crybaby."
In a report submitted March 21, the Department indicated that although Milton A. had now submitted proof of completion of a parenting program, there were serious concerns about his parenting ability as evidenced by his behavior during visits. The Department indicated Milton A.s behavior reflected a failure to integrate into his parenting practices any knowledge he had gained in the parenting program. The Department further reported that the social worker had recently met with Milton A. to discuss his housing situation, and Milton A. stated that he did not think his living situation was relevant. When the social worker attempted to explain, Milton A. became angry, would not allow the social worker to speak, and walked out of the meeting. As a result, the social worker was unable to obtain other information such as Milton A.s current employment. At the hearing on March 21 the court extended reunification for an additional period, again over the Departments objection, and set the case for the 18-month permanency review hearing (§ 366.22) on July 28, 2006.
In its report for the permanency review hearing, the Department indicated S.K. had missed all her scheduled drug tests from April through June, and she had been expelled from her drug abuse program for unexcused absences and failure to test. Milton A.s behavior during visits had improved, but he frequently left the room for extended periods, was disengaged from the children, preferred watching S.K. interact with the children, and would not agree to visit them alone although he realized he would have to separate from S.K. in order to reunify with them. The Department further reported that Milton A. was cagey about his housing (he provided a P.O. Box address to the social worker), and was apparently living with S.K. although he had previously stated he intended to separate from her in order to regain custody of the children. On July 27 the hearing was continued to August 30 for a further report from the Department and confirmation of Milton A.s address. In its additional report, the Department indicated the social worker visited Milton A. on August 10 at his mothers apartment, where he claimed he had been living for the past two months. The Department noted this information was in conflict with Milton A.s reports of his housing situation in June and July. Although Milton A. had twice visited the children separately as encouraged by the social worker to give credence to his claim he had separated from S.K., he did so reluctantly and told the social worker separate visits would not mean anything because he and S.K. could still be together. The social worker concluded Milton A. would allow S.K. to have unlimited access to the children if they were returned to him.
At the permanency review hearing on August 30, the social worker testified Milton A.s interaction with the children had improved at his last two visits, but he still became frustrated and overwhelmed when one child cried and the other yelled. The social worker acknowledged Milton A. had completed a parenting program and was thus in compliance with his case plan, but she did not believe Aaron and Gabriel could safely be returned to him, principally because it was likely he would allow S.K. to have unlimited access to them. The social worker noted S.K. had missed all her drug tests since April, which indicated she had not overcome her crystal methamphetamine drug problem.
Milton A. testified he planned to live with the children in his mothers home, would not permit S.K. to have access to the children if so ordered by the court, and would participate in additional programs if necessary. Milton A. testified he did not know what medications the children were taking or that Gabriel was unable to use utensils to eat, he had never had a meal with the children, and he had not made arrangements for daycare.
At the conclusion of testimony by Milton A., counsel for the Department requested the court terminate reunification services for both parents. Counsel for the children joined in the Departments request, urging the evidence showed Milton A. had failed to make sufficient progress to enable him to care for the children: the improvement in his visitation behavior was not substantial and very recent, he was unaware of the childrens special needs and medical requirements, the grandmothers home was not suitable for the children, and it was likely Milton A. would allow S.K. to have unlimited access to the children.
After hearing argument, the court found that it would be detrimental to the childrens safety and well-being to return them to the custody of S.K. or Milton A. The court found that although Milton A. was in compliance with his case plan, the evidence showed he "really [hadnt] gotten anything out of it," as shown by his lack of interest in the children during visits, failure to visit them by himself, and lack of awareness of their medical needs. The court added that the evidence made clear Milton A. had not truly separated from S.K. and that he would undoubtedly allow her to have access to the children. The court further found the Department had offered reasonable reunification services, and proceeded to terminate reunification and set the matter for a hearing pursuant to section 366.26.
CONTENTION
Milton A. contends the court erred in terminating reunification, because there was insufficient evidence to support a finding that the children were at risk of harm if returned to him.
DISCUSSION
At the 18-month permanency review hearing, which is the statutory limit for reunification, the court must order a childs return to his parents custody unless it finds, by a preponderance of evidence, that the return of the child will create a substantial risk of detriment to the childs safety, protection, or physical or emotional well-being. (§ 366.22.) In this case, the record contains ample evidence to support the courts finding of substantial risk of detriment.
When we review a sufficiency of the evidence challenge, we look only at whether there is any evidence, contradicted or uncontradicted, that supports the trial courts determination. We resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the courts order. Additionally, we do not substitute our deductions for those of the trier of fact (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212), and we have "no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or the reasonable inferences to be drawn therefrom." (In re Stephen W. (1990) 221 Cal.App.3d 629, 642.) Nor is a parents compliance with his case plan the sole factor to be taken into account in determining whether there is a risk of detriment. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140; In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.)
With this standard of review in mind, the courts finding the return of the children to Milton A. would create a substantial risk of detriment to their well-being is supported by substantial evidence. The record shows that after 19 months of reunification Milton A. had not progressed beyond monitored visits with the children, was unfamiliar with the childrens medical needs, and had not made provision for their care during his work hours. The record also shows that just months prior to the 18-month hearing Miltons behavior during visits with the children remained grossly inappropriate: He was rude and demeaning to S.K., told Aaron his prospective adoptive mother was a "fake mom," called Gabriel "spoiled" and a "crybaby," and was belligerent with the social worker. Although Milton A. showed improvement in the last two visits before the section 366.26 hearing, he remained unable to complete a visit without becoming frustrated and overwhelmed. Additionally, the record shows that Milton A. remained unable to sever his relationship with S.K. and keep her away from Aaron and Gabriel, even though she had failed to resolve her drug abuse problem and posed a danger to the children.
DISPOSITION
Because substantial evidence supports the juvenile courts order to conduct a hearing pursuant to section 366.26, the petition is denied on the merits.
We concur:
JOHNSON, Acting P.J.
WOODS, J.