Opinion
D053742.
4-23-2009
In re J.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL W. et al., Defendants and Respondents; J.C., Appellant.
Not to be Published in Official Reports
J.C., the minor, appeals a juvenile court order made at a six-month review hearing. The order continued previously ordered reunification services for Michael W., J.C.s father. J.C. contends the court erred by continuing reunification services for Michael because the evidence at the six-month review hearing did not support a finding Michael made substantive progress with the requirements of his case plan. The San Diego County Health and Human Services Agency (Agency) joins J.C.s arguments. We reverse the courts order.
The Agency requests this court to take judicial notice of a juvenile court minute order from the November 2008 12-month review hearing. Cassandra W., J.C.s biological mother, argues this appeal is moot because the 12-month review hearing has passed. The Agency argues the appeal is not moot because the trial court continued the 12-month review hearing. As a result, Michael continues to receive services. We agree with the Agency and take judicial notice of the November 2008 review hearing. The minute order shows the hearing has not yet been concluded. The issue regarding Michaels continued reunification services is not moot and relief can still be provided to J.C.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2007 the Agency filed a petition on behalf of almost five-month-old J.C. under Welfare and Institutions Code section 300, subdivision (b). The police found Michael pushing J.C. in a stroller while he cursed and swore at imaginary people. Michael told the police that he was homeless and J.C. was his son.
All further statutory references are to the Welfare and Institutions Code.
About one month before the Agency filed the petition, Agency social workers learned that Cassandra left J.C. in the custody of Billie W., the paternal grandmother. Cassandra claimed she could not provide for the child. In September 2007 Michael attempted to commit suicide. Michael ingested a large amount of medication and attempted to hang himself with an extension cord. J.C. was present in the home when Michael attempted the suicide.
The social worker reported Michael had an extensive criminal history, suffered from severe mental health problems and had acted violently toward Billie. Michael had been diagnosed with schizophrenia and bipolar disorder. He frequently did not take his medication and, instead, he self-medicated himself with alcohol and marijuana. Michael told the social workers he wanted to participate in reunification services in an effort to regain custody of J.C. He volunteered to take a drug test. Michael also wanted to have visits with J.C.
In October 2007 the court held a detention hearing. The court declared J.C. a dependent and ordered he be placed in out-of-home care.
In the months that followed, the social worker observed visits between Michael and J.C. Michael attended all scheduled visits and acted appropriately with J.C. The social worker reported Michael did not appear on J.C.s birth certificate, but he wanted to submit to a paternity test in order to prove he is J.C.s biological father. In the event the result showed he is J.C.s biological father, Michael reiterated to the social worker that he would like to receive reunification services. The social worker recommended that a paternity test be ordered for Michael.
The court held a special hearing in March 2008. The court received the paternity tests in evidence and found him to be J.C.s biological father. The court entered a judgment of paternity and ordered Michael to participate in reunification services and enroll in the Substance Abuse Recovery Management System (SARMS) program. Michaels other services included therapy, a 52-week domestic violence program, submitting to a psychological evaluation and submitting to psychotropic medication monitoring.
Social worker Yolanda Williams prepared a six-month review report in May 2008. She recommended continuing services for Michael for an additional six months. Michael visited J.C. two days a week for two hours at a time. During visits J.C. went willingly to Michael. Michael displayed affection toward J.C. and the two interacted well together. Michael would play with J.C. and feed him during visits. Michael participated in the SARMS program twice and regularly submitted to drug testing. All but one test came back negative. Michael began his individual counseling sessions. The therapist believed Michael needed to consistently take medication in order for therapy to be effective. Michael had not yet submitted to a psychological evaluation or participated in domestic violence courses. Michael admitted he was not yet in a position to take care of J.C. because he did not have a stable home or job.
In July 2008 social worker Jesus Salcido reported Michael had been arrested and charged with assault with a deadly weapon. Michael remained in jail and was awaiting his trial. Michael would not be receiving services while in jail because he requested to be placed in protective custody where such services would not be available to him. Salcido did not know how long Michael would have to serve time in prison. Regardless of his prison sentence, Salcido believed there was no substantial probability the court would be able to place J.C. with Michael by the 12-month review hearing scheduled for November 2008. The Agency changed its recommendation as to Michael and reported services should be terminated.
Social worker Salcido filed an addendum report after Michael pled guilty to assault with a deadly weapon. He continued to recommend the court terminate services. Michael had not participated in a psychological evaluation, and he had not consistently taken medication for his mental illnesses. Salcido reiterated there was no substantial probability that J.C. could be returned to Michaels care by next review hearing. Michael had an extensive history with mental health issues, previous aggressive and violent behaviors and suicide attempts. Michael did not consistently take his medication to treat his bipolar disorder and schizophrenia.
In August 2008 the court held a six-month review hearing. Salcido testified at the six-month review hearing that before Michael was arrested, Michael visited J.C. twice a week. Michaels last visit with J.C. was in May 2008. Before Michaels arrest, he was not in compliance with SARMS and had been discharged from the program. Michael had not participated in a domestic violence program. Salcido further testified he had provided Michael referrals for a psychological evaluation, but he did not submit to an evaluation nor had he made arrangements to participate in one. Salcido believed Michael would not be able to complete the evaluation, participate in SARMS or comply with the remaining components of his case plan by the 12-month review hearing. In addition, Michaels criminal case was still pending.
The court, after considering Salcidos testimony and reviewing the Agencys reports, found Michael had made substantive progress with the provisions of his case plan and ordered the Agency to provide Michael with an additional six months of services. The court scheduled a 12-month review hearing date for November 2008. The court then scheduled a hearing in September 2008. The court stated the purpose of the hearing would be to revisit the status of Michaels criminal case and reconsider what additional services should be offered to him based on any developments made in that case.
Salcido filed an addendum report on September 10, 2008, reporting Michael had been placed on probation and released from custody the day before. Salcido continued to recommend that the court terminate Michaels services. Michael had not shown progress or consistency with taking his daily medication. The issues surrounding the dependency, including Michaels mental health concerns, suicidal tendencies and aggressive behaviors, had not been addressed. Salcido believed it was critical for Michael to be in full compliance with his case plan before offering him additional services.
The court held a hearing to reconsider its order continuing services for Michael. The court reaffirmed its order continuing services to the 12-month review date. Counsel for J.C. timely filed a notice of appeal.
DISCUSSION
J.C. and the Agency argue the juvenile court erred by continuing services because Michael had not made substantive progress with his case plan and there was no evidence showing the substantial probability that J.C. would be returned to Michaels care by the 12-month review hearing.
A
The grant of child welfare services, including reunification services, is governed by section 361.5. Subdivision (a) of that section provides that where a child was under the age of three years when initially removed from parental custody, services shall be provided during the period of time beginning with the disposition hearing until the six-month review hearing. (§ 361.5, subd. (a)(1)(B).)
Services may be extended up to a maximum of 18 months from the date the child was originally removed from parental custody if there is a substantial probability the child will be returned to the custody of the parent within the extended time period. (§ 361.5, subd. (a)(2).)
"In order to find a substantial probability of return within the applicable time period, the court must find all of the following: ¶ (i) The parent or guardian has consistently and regularly contacted and visited the child; ¶ (ii) The parent or guardian has made significant progress in resolving the problems that led to the removal of the child; and ¶ (iii) The parent or guardian has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the childs safety, protection, physical and emotional health, and special needs." (Cal. Rules of Court, rule 5.710 (f)(1)(E)(i)-(iii).)
Section 366.21, subdivision (e) addresses the trial courts review at the six-month review hearing. The court shall order a child returned to the physical custody of his or her parent unless the court finds, by a preponderance of evidence, it would be detrimental to the childs safety, protection, or physical or emotional well-being to do so. A parents failure to regularly participate and make substantive progress with services is prima facie evidence that return would be detrimental. If at the six-month review hearing the court finds by clear and convincing evidence the parent did not regularly participate in services and make substantive progress, services may be terminated and the court may schedule a section 366.26 selection and implementation hearing. (Ibid.)
Reunification services are a benefit, not a constitutional entitlement. Thus, a juvenile courts dispositional orders, including those respecting reunification services, are subject to that courts discretion. The juvenile court has discretion to terminate those services at any time, depending on the circumstances presented. (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.) To reverse such orders, a reviewing court must find an abuse of discretion. (Id. at p. 1243; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) This standard entails deference to the trial court. However, finding an abuse of discretion only in those circumstances in which the judge acted arbitrarily or capriciously would be misleading because "it implies that in every case in which a trial court is reversed for an abuse of discretion its action was utterly irrational." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) While the abuse of discretion standard gives the trial court significant latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the `legal principles governing the subject of [the] action . . . . Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an `abuse of discretion." (Ibid. )
B
We conclude that the court abused its discretion by continuing services because the evidence in the record does not support the trial courts conclusion. Here, there was no showing Michael made substantive progress with his case plan or that there was a substantial probability J.C. would be returned to the custody of Michael by the 12-month review hearing. We acknowledge that the record shows Michael made an effort to participate in services by enrolling in SARMS and attending supervised visits with J.C. However, Michael continued to suffer from an untreated and chronic mental illness. The mental illness likely caused him to attempt suicide and led him to commit violence against Billie and the assault that led to his arrest. Michael had not participated in a psychological evaluation, and he also had not submitted to a medication management evaluation. The record shows no proof that Michael was properly taking medication for his mental illness. He admitted to social workers that he was not in a position to take custody of J.C. because he did not have the means to do so. He did not have a stable home for J.C., and he had not secured employment.
The Agency reported there was no substantial probability that reunification would occur by the next review period. Social worker Salcido testified Michael was not in compliance with the SARMS program before the police arrested Michael. The nature of the offense showed Michael continued to suffer from a numerous issues, including a propensity toward violence. Further, Salcido believed Michael would not be able to complete his case plan before the next review hearing. Salcido acknowledged Michael could not participate in services for more than three months due to his incarceration. However, there was no indication Michael attempted to contact J.C. while in prison. Even after Michael received probation and was released from custody, Salcido opined the incarceration was an indication Michael would not be ready to reunify with Jimmy by the 12-month date. There was no showing of any kind that Michael would be ready to properly care for J.C. in the foreseeable future.
Under these circumstances, there was no substantial evidence on which it reasonably could be concluded J.C. would be returned to Michael by the review hearing. Michaels problems were severe and recurrent as evidenced by his suicide attempt, his arrest, his admission that he was not ready to take care of J.C. and his noncompliance with his case plan. The Legislature, in enacting the dependency statutes has "recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. [Citations.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Michael had made little or no progress in addressing the issues that led to this dependency, specifically, his mental illness. In view of the lack of evidence to support the trial courts findings, we conclude the court abused its discretion by basing its decision on factual findings that are not supported by evidence in the record.
DISPOSITION
The order is reversed.
WE CONCUR:
NARES, Acting P. J.
IRION, J.