Opinion
A154911
10-03-2018
JEFFREY C., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1600995)
Petitioner Jeffrey C. (Father) is the presumed father of five-year-old Jackson B.-D. (Minor). Father has filed a petition for an extraordinary writ pursuant to California Rules of Court, rule 8.452 seeking to vacate the order of respondent Superior Court of Contra Costa County terminating his reunification services and setting a Welfare and Institutions Code section 366.26 permanency hearing. He contends that substantial evidence does not support the juvenile court's conclusion that returning Minor to his care would create a substantial risk of detriment to Minor and that the court should have continued the 18-month review hearing. We disagree, and accordingly we deny the petition on the merits.
BACKGROUND
Section 300 Petition , Detention , Jurisdiction , and Disposition
On October 26, 2016, police were called to a gas station on Leland Road in Pittsburg in response to a report of two individuals "slumped over" with a child in the car. Father was in the car and appeared to be under the influence of a stimulant as well as an antidepressant, and Minor's mother Katie B. (Mother) was unconscious in the passenger seat with a syringe stuck in her arm. Minor, then three years old, was in the back seat. Paramedics were called and revived Mother with the help of an opiate counter drug. Father later admitted to using cocaine, methamphetamine, and methadone within the past twenty-four hours, and to using heroin the previous day. Father was arrested for driving under the influence and both parents were arrested for child endangerment. Minor was taken into protective custody.
On October 28, 2016, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) alleging that Mother placed Minor at substantial risk of harm by allowing Father to operate a vehicle while under the influence of multiple substances with Minor inside, and that Mother had a chronic substance abuse problem that interfered with her ability to parent Minor, i.e., she used heroin intravenously in his presence resulting in her losing consciousness and requiring medical attention.
All further statutory references are to the Welfare and Institutions Code.
At a jurisdictional hearing on December 1, 2016, Mother pled no contest to the allegations and the juvenile court sustained the petition and ordered counsel appointed for Minor. Minor was eventually placed with his maternal grandparents. On December 14, 2016, Father filed a "Statement Regarding Parentage," requesting presumed father status for Minor. The juvenile court held several hearings on Father's request, ultimately granting it on May 10, 2017, and ordering reunification services on June 28. Minor, through counsel, appealed those orders, and this court affirmed. (See In re Jackson B. (Feb. 22, 2018, A151744) 2018 WL 1006325 [nonpub. opn.], at p. *1.)
The case plan for Father required individual counseling, a parenting education class, an inpatient substance abuse treatment program, and random drug and alcohol testing. Any missed drug test would be considered a positive.
Six-month Review
A six-month review hearing was held on July 12, 2017. In the report prepared for the hearing, the Bureau indicated that on December 14, 2016 Mother and Father had become residents of Jelani House, an inpatient substance abuse program, and had successfully completed six and a half months of treatment. They were participating in individual and group counseling, as well as outside treatment through the BAART program. They were in the last stage of treatment and were focused on securing housing and employment. Father had been participating in drug testing through Jelani House, with negative results. He began drug testing through the Bureau's program on June 8, 2017. He tested positive twice for methadone, a substance used for drug addiction detoxification and maintenance, and failed to show for two drug tests, but did not test positive for any other drug. At the hearing, the juvenile court continued reunification services to the twelve-month review.
Twelve-month Review
A twelve-month review hearing was held on November 29. The Bureau reported that the parents had completed their residential treatment at Jelani House on November 2. They were now living with Father's mother and stepfather in Antioch. It was recommend that Mother and Father "complete an after-care program for ninety days . . . [enroll] in a vocational program, maintain weekly NA/AA meeting 12 step meeting attendance and work with a sponsor." From July through early November, Father's random drug testing through the Bureau was positive for methadone and no other drugs, although he missed two tests. The court continued reunification services to the eighteen-month review.
Eighteen-month Review
An 18-month review hearing was held on April 18, 2018. At that hearing, Minor's counsel sought a contested hearing, termination of services, and a section 366.26 hearing based on a series of no-shows for the parents' drug tests and a recent police report involving Father. The juvenile court set a contested hearing for May 30.
Contested Hearing
Before the May 30 contested hearing, the Bureau provided two memoranda to the court. The first memorandum, dated May 2, provided information regarding the parents' participation in the BAART program. According to BAART, Father was in the maintenance phase of the program, was taking his methadone as prescribed, and was attending Narcotics Anonymous meetings twice per week. The Bureau indicated that Father had neck surgery on May 14 and was placed on bed rest from May 14 until May 21. Father had several no-shows for drug tests before the April 18 hearing but had since arranged with his employer for extra time over his lunch break in order to complete his drug tests. The memorandum concluded by recommending that Minor be returned to the care of Mother and Father with a plan of family maintenance services.
A second memorandum indicated that the Bureau had received a voicemail from Mother on May 24, stating that on May 21, Father was arrested and charged with being a felon in possession of a firearm and trespassing on railroad property. He was currently in jail with bail set for $217,000. In light of this, the Bureau withdrew its recommendation that Minor be returned to Mother and Father and requested a three week continuance of the contested review hearing to reevaluate its recommendation.
At the May 30 hearing, the court continued the hearing until July 18 so that the Bureau could revise its recommendation and prepare a new report. The court also observed that Mother was pregnant and did not "look very good."
In a memorandum prepared for the July 18 hearing, the Bureau provided details about Father's May 21 arrest. According to a police report, police stopped Mother and Father driving a white Ford Explorer on private property near railroad tracks. Police observed a loaded syringe and an empty uncapped syringe in the vehicle. A search of the vehicle revealed an unloaded rifle in the back seat as well as several empty containers of methadone prescribed to Father, along with a syringe filled with a red or brown liquid. Father stated that he was holding the rifle for a friend. He also told police that he had been clean and sober for the past year but had recently had surgery on his neck and had started using opiates again. Father was arrested for being a felon in possession of a firearm and for trespassing on railroad property. He was released on June 12 and required to wear an ankle monitor.
On June 28, Father's counselor at BAART reported that he had not been "dosing" methadone since approximately May 15, and had two positive drug tests, one for codeine and one for hydromorphone. He had missed four drug tests since May 12. BAART asked Father to provide verification of prescriptions for the codeine and hydromorphone as well as documentation of the medication he was to be prescribed in connection with his neck surgery, but he never did so. He was discharged from BAART on June 13 for noncompliance.
The report does not give the date of these tests, which were apparently performed through the BAART program. The Bureau's report also indicates that on May 12 Father tested positive for "Opiates."
The report also indicated that on June 15 a social worker made a visit to Minor's maternal grandfather and was told that Mother had given birth. The baby tested positive for amphetamines and opiates, and Mother tested positive for amphetamines, opiates, and methadone. Mother at first claimed that the test results must be incorrect, but eventually admitted she had relapsed.
The Bureau noted that both parents made progress when they were in a residential treatment program, but that they had not been able to sustain that progress since leaving the program. It also noted that Minor's maternal grandfather had indicated that he wanted to become Minor's legal guardian. It ultimately recommended that the court terminate reunification services to both parents and set a section 366.26 hearing.
The contested 18-month review hearing was held on July 18. Father objected to the termination of reunification services but did not introduce any evidence. At the end of the hearing, the juvenile court found as follows:
"And now that [Father] has found himself once again caught up in the criminal justice system facing very serious charges associated with his substance use, poor decision making, really, it's very sad in terms of this little boy more than anyone.
"But these parents—I don't even know how I make a finding that there's been partial progress. We're almost right back to where we began almost two years ago at this point in time, which is right back to using drugs, engaging in unlawful behavior and now exposing yet another child to risks associated with substance abuse.
"So I am actually going to amend recommendation number 14 because I don't believe the evidence supports partial progress. So I'm going to add mother to 14 and strike the word partial and insert the word poor. I think it's better suited to the facts and evidence before the Court.
Recommendation number 14 had asked the court to "[d]etermine that the extent of progress which [Father] has made toward alleviating or mitigating the causes necessitating placement in foster care is partial."
"So with those comments and because the parents are out of time in terms of reunification for [Minor] and because they have resumed the substance abuse which is the very reason why [Minor] is before this Court, I am going to follow the recommendation of the Department as it is supported by overwhelming evidence."
With that, the juvenile court ordered reunification services terminated and set a section 366.26 hearing for November 7.
On August 23, Father filed a petition for an extraordinary writ seeking to vacate the court's order terminating his reunification services and setting a section 366.26 hearing. On August 24 we issued an order to show cause, and on September 10 the Bureau filed its opposition.
DISCUSSION
When the juvenile court reviews the status of a minor who has been removed from parental custody, section 366.21, subdivisions (e)(1) and (f)(1) and section 366.22, subdivision (a)(1) require the court to return the minor to the physical custody of the parent unless, by a preponderance of the evidence, the court finds this "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (See In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) The court here found there would be a substantial risk of detriment to Minor if he were returned to Father's care, a finding Father contends is unsupported by substantial evidence. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764 [we review an order finding detriment for substantial evidence].) We disagree.
Father argues that the court erred in terminating his reunification services because he had resolved the criminal charges arising from his May 21 arrest and there was an understandable explanation for his relapse, namely, the fact that he was prescribed medication after his neck surgery. In the first place, Father does not appear to have properly raised these arguments below. There is no evidence in the record that his criminal matter had been resolved, other than his counsel's statement to that effect at the hearing. Father did not argue to the juvenile court that there was an understandable explanation for his relapse, nor did he introduce any evidence regarding any medications he was prescribed because of his neck surgery. The only arguable mention of this explanation in the record is a statement in the Bureau's report that Father "said he was clean and sober for the past year but recently had surgery on his neck and has started using opiates again." (Italics omitted.)
Even if Father's argument were properly raised below, the court was not required to find Father's relapse "understandable." And the question before us is simply whether substantial evidence supports the court's conclusion that there was a substantial risk of detriment to Minor if he were to be returned to Father's care. It does. As noted, Father had twelve no-shows for drug testing from March through June of 2018, which no-shows were to be deemed positive tests according to the terms of his case management plan. He tested positive for codeine and for hydromorphone through the BAART program, tested positive for opiates on May 12 through the Bureau's testing program, and admitted that he had relapsed when he was arrested on May 21. In addition, as Father does not dispute, he violated the terms of his case management plan by illegally possessing a firearm and trespassing and was arrested for those offenses. Father was also living with Mother, who had also relapsed and resumed substance abuse. All this is substantial evidence in support of the court's conclusion that Father had failed to address the issues necessitating placement and thus that returning Minor to Father's care would create a substantial risk of detriment.
Father also argues that the juvenile court should have continued the 18-month review pursuant to section 352, subdivision (a) in order to permit him to "engage in aftercare regarding his opiate addiction." Section 352, subdivision (a) provides that "[u]pon request of counsel for the parent . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor." Father did not request a continuance below, under section 352 or on any other basis, and thus has forfeited this issue on appeal. (See In re Christopher B. (1996) 43 Cal.App.4th 551, 558 ["In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motion in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal."].)
Furthermore, this case does not present the type of extraordinary circumstances in which the court could exercise its discretion to continue the hearing on its own motion, as in In re Dino E. (1992) 6 Cal.App.4th 1768, on which Father relies. Such circumstances "uniformly involved some external factor which prevented the parent from participating in the case plan." (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; see In re Dino E., supra, at p. 1778 [no reunification plan ever developed for parent].) In this case, Father received reasonable reunification services, and he does not contend otherwise. The failure of the case plan did not involve any external factor beyond Father's control, but rather his unfortunate relapse into substance abuse. Even were the issue of a continuance not forfeited, we conclude that the court would not have abused its discretion had it denied a request to continue the 18-month review hearing.
DISPOSITION
Father's petition is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.