Opinion
F088410
10-23-2024
J.H., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
J.H., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ Super. Ct. No. JV8401, Hallie Gorman Campbell, Judge.
J.H., in pro. per., for Petitioner. No appearance for Respondent.
Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
In this writ proceeding, the father of a dependent child seeks review of the juvenile court's order terminating reunification services. Finding no merit in his challenge, we deny the father's petition for an extraordinary writ.
BACKGROUND
The child whose interests are at issue in this proceeding is C.H., who was born in March of 2022. Petitioner James H. is his presumed father.
Detention
C.H.'s mother is S.H. (mother), who also has two other children. On June 29, 2023, the Tuolumne County Department of Social Services (department) filed a Welfare and Institutions Code section 300 petition, alleging C.H. (then age 15 months) was at risk of harm because his half siblings, A.M. and N.M. (then ages three and a half and two years old, respectively) had been abused or neglected by either their father Al.M., or that A.M. had caused the injuries to N.M. after he was provoked toward aggressive behavior by mother and petitioner. All three children resided in the home of petitioner and mother. The family had a history of referrals to child welfare pertaining to concerns of bruises and injuries to A.M. and N.M.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Petitioner is Al.M.'s uncle and his former guardian when he was in foster care as a child.
The current circumstances that led to the filing of the section 300 petition alleged that, following a visit with Al.M., A.M. and N.M. returned with bite marks and bruises. A.M. was said to be aggressive when he returned from visits and would "beat up" mother. Petitioner was confrontational with the department when they came to the house to observe the children. Petitioner blamed all of A.M.'s aggressive behavior on visits with Al.M. Mother did not allow access into the home, which appeared to be cluttered and unhygienic. C.H. was observed to be filthy and had multiple bug bites on his legs; N.M. had bruising and bite marks on various parts of her body.
When asked about N.M.'s seizure disorder, for which she was being assessed, petitioner expressed frustration that they had to drive to Palo Alto for appointments. Petitioner also became increasingly frustrated with the social worker, asking whether they would be seeing Al.M., as he was the cause of the problems. At one point, petitioner stated he was going to contact a realtor to sell his home because he was tired of being harassed by the department.
The preschool where A.M. and N.M. attended reported that petitioner called A.M. a "little shit" for beating up mother. The comments were made in front of A.M. When school staff attempted to speak to mother about the incident, petitioner got in his car, kept the passenger door open, and started to drive away, causing mother to rush to the car so he would not leave her. The staff reported that petitioner was "controlling" of mother. The staff voiced concerns that mother and petitioner left the children unattended in the downstairs of the home while mother and petitioner were upstairs behind a locked gate. A.M. was diagnosed with autism and showed aggressive behaviors and struggled to regulate at school. N.M. suffered from seizures and was observed with bruising on her body.
Al.M. was contacted and reported that he had four hours of visitation with A.M. and N.M. per week, and that the children often arrived at the visits with marks and bruises. He took photos of the injuries to chronicle them, but did not follow through with showing them to anyone because he was worried about backlash from petitioner and mother. Al.M. explained that, from his own past with petitioner, he considered petitioner to be violent and "someone who has violent behaviors while using alcohol." Al.M. reported that the home mother and petitioner lived in (which Al.M. had lived when he was in foster care) was not safe and should be condemned.
At a child and family team (CFT) meeting, petitioner became very frustrated, insisting that the "solution" to the children's problems was not allowing A.M. and N.M. visits with Al.M. Mother acknowledged that she sprayed N.M. with a squirt bottle when she would not stay in her room or when she tried to get her out of her car seat. Mother stated that the technique "works." When asked, petitioner and mother made excuses for spraying N.M. with the squirt bottle. When told that was not appropriate discipline, petitioner said he was "done" with the meeting.
When asked, petitioner stated that he was not identified as C.H.'s father on the birth certificate and did not sign the declaration of paternity as he was not available to sign the documents when the forms were processed.
Eventually, the department sought and was granted a protective custody warrant to place the children into foster care. Petitioner became upset, stating the children were safe when Al.M. was not involved and, when the department came to take the children, he yelled at those involved and threatened them. He also yelled at A.M. that the department was coming to take him because they did not care about him. He then refused to speak to the social worker and would only speak to the deputy who was also there. His behavior escalated and he stated, in regard to another deputy in a previous interaction with law enforcement, that, if the deputy had not had his camera on, he would have slapped him. During the encounter, petitioner also ordered mother not to cooperate with the social worker. Mother's demeanor and reactions changed significantly when she was outside petitioner's presence.
The detention hearing was held July 5, 2023. The children were found to come within the provisions of section 300 and placed in the care and custody of the department. Jurisdiction
The jurisdiction hearing was set for July 31, 2023, and later continued to August 14, 2023, where the allegations of the petition were found true. At that time, petitioner refuted the allegation that he had not signed the birth certificate or a declaration of paternity and that he was not present at C.H.'s birth. The department was asked to look into whether the department's report needed to be corrected.
On July 25, 2023, petitioner had filed a JV-505 statement regarding parentage, alleging he believed he was C.H.'s father. He also requested that he be found to be the presumed father of all of the children, as he had lived with them since June of 2021 and participated in school, meals, family events and holidays and all of the children call him "dad." He also alleged that he gave money for diapers, food, bills and "general" child needs.
Disposition
The disposition hearing was scheduled for August 28, 2023, and rescheduled for September 18, 2023. The department recommended that the children remain dependents of the court and remain in out of home care. It recommended that mother, petitioner, and Al.M. review, sign, and comply with the family reunification case plan. The report in anticipation of the disposition hearing stated that petitioner minimally complied with the requested psychological interview. The report also stated that mother indicated petitioner was C.H.'s father and no genetic testing was needed to show that. While Al.M. requested genetic testing, as he thought he was C.H.'s biological father, mother did not want genetic testing done and stated that, if Al.M. or "anyone else" was found to be C.H.'s father, "it was the result of rape." Al.M. was later found not to be C.H.'s biological father.
The disposition report recommended petitioner's case plan consist of coparenting education, a psychiatric evaluation, welfare to work linkages, and parenting education.
We emphasize petitioner's case plan and services, as he is the one challenging the termination of services.
On September 18, 2023, Jacob B. filed a form JV-505 stating that he believed he was the biological parent of C.H. At a hearing on that date, Jacob B. was present and DNA testing showed him to be C.H.'s biological father. Counsel was appointed for Jacob B. The issue of parentage, as well as appointing a guardian ad litem for mother, was scheduled for September 25, 2023, and then rescheduled for October 9, 2023.
At the October 9, 2023, hearing, counsel for Jacob B. asked that he be elevated to a Kelsey S. presumed father. The parties asked that the hearing be continued in order to address Jacob B.'s request and to address petitioner's "position moving forward." The hearing was rescheduled to October 23, 2023. At that time, while the juvenile court was not ready to make a disposition order "quite yet," it was amenable to starting services for mother, Al.M., and petitioner. Disposition was continued to November 20, 2023.
Adoption of Kelsey S. (1992) 1 Cal.4th 816.
The case plan goals filed by the department for the November 20, 2023, hearing stated, inter alia, that petitioner agreed to attend individual counseling to help address his own past trauma, develop adequate coping skills, address mental health diagnoses, and develop coparenting skills in order to support the long-term ability to safely parent the children. It also stated that petitioner agreed to attend parenting classes, and that petitioner agreed to show insight and take responsibility for involvement in the dependency system. While mother signed the case plan goals November 20, 2023, petitioner did not.
Petitioner was not present at the November 20, 2023, hearing. Counsel for petitioner stated that petitioner "has been the presumed father of the children for some time now. And now that we have a biological father[] who [is] coming forward, and after much discussion with my client, he is requesting that his status as presumed father be set aside. [¶] .. And he is requesting that he waive services."
The juvenile court addressed the other parties, asking if anyone objected to removing petitioner from presumed status. No one objected. The juvenile court then stated that it did not believe it had a legal basis to remove him, "but we would ask that he sign a waiver waiving his reunification services. Once we have that waiver, we could submit separate orders to reflect that." In the interim, the juvenile court, noting the lengthy delays that had already occurred in the case, stated that the department was to continue to provide petitioner with services, and it was up to petitioner as to whether he participated or not. Jacob B.'s status was also elevated to that of presumed father. The juvenile court ordered reunification services as recommended by the department and May 6, 2024, was set for the review hearing.
Six Month Review Hearing
The department's report written in anticipation of the review hearing, recommended reunification services be terminated for mother, Jacob B. and petitioner. The report stated that mother was currently residing in a hotel, although she had been approved for an apartment but had not provided an address. She was pregnant and expecting a child in July of 2024, but did not provide the department with information. Jacob B. was said to have had sporadic communication with the department, had moved a number of times, and was not able to reunify with C.H. at his current location, as his roommate was not open to it.
As to petitioner, the report stated that "little is known about [petitioner's] current circumstances due to his inconsistent and often adversarial contact and communication with the department." He was not living with mother, and had not provided employment information to the department. The report stated that petitioner had refused to sign the case plan "unless advised by his attorney and he has reported not being able to connect with her." In January of 2024, petitioner reported that he was unsure if he wanted or needed to participate in the case plan as he requested to no longer be a party to the dependency matter. He also stated his school schedule did not allow him time to participate in the case goals. He also continued to deny the allegations of the petition that he failed to protect the children, and he continued to place blame on Al.M. for the injuries observed on the children.
In February of 2024, petitioner acknowledged that he and mother were not living together and did not intend to reunify. When asked in April 2024 about his lack of participation in the case plan, petitioner placed the blame on his attorney, and when reminded of his January 2024 conversation about not signing the case plan without advice from his attorney, he stated that was untrue. As for visitation with C.H., petitioner stopped attending when he separated from mother and failed to communicate with the department about possible separate visitation times. Petitioner had not engaged in any coparenting counseling; stated that he never agreed to complete a psychological evaluation; was not participating in a parenting education program; and was discontinued from the welfare-to-work program.
Visitation reports for petitioner indicated that he became very agitated during a visit in February of 2024 when it needed to end 20 minutes early to allow A.M. to transition to his visit with Al.M., causing A.M.'s behavior to escalate. At the next visit, petitioner arrived late, but before mother. None of the children wished to hug him. The last visit petitioner had was at the end of February 2024. Attempts to have petitioner visit C.H. separately did not come to fruition because petitioner failed to communicate with the department about possible visitation times.
In summary, the report stated, as to petitioner:
"During this review period, [petitioner] has refused to participate in his case plan services as he has been unwilling to sign his case plan, and reported he was unsure if he wanted to participate in services. Due to [petitioner's] lack of engagement, Child Welfare Services has been unable to assess [petitioner's] progress and protective capacity."
Petitioner's interactions with the department "remained adversarial and accusatory" and he "consistently demonstrated an unwillingness to work cooperatively or collaboratively toward [mitigating] the conditions that brought the child into care."
The contested review hearing was not held until July 8, 2024. Petitioner's counsel argued that mother and petitioner operated as a unit and, if mother was going to continue having services, petitioner should be allowed additional services too. As argued by counsel, "He's just starting to get involved in everything and wants to be involved." Counsel for the department argued against continuing services, stating that the 12-month mark for the case was only four weeks away and neither mother, Jacob B. nor petitioner had progressed past supervised visits.
The juvenile court found that mother, who had a guardian ad litem, had a learning disability and had trusted and been over-reliant on petitioner, who's influence, the juvenile court noted, "hasn't been great," as he has consistently antagonized A.M., causing A.M. to react negatively. The juvenile court found A.M. and N.M. were doing "much better" in Al.M.'s care. The juvenile court stated that it was going to exercise its discretion and grant mother, who now had housing, more services. She had been consistently visiting and needed to continue with therapy to be an independent parent, out of petitioner's influence.
As for petitioner, the juvenile court terminated services as to him, stating:
"I think there's plenty of evidence that he has avoided participating, avoided signing, has not really wanted to follow along with any kind of program."
The juvenile court did not think it made any sense to wait on a psychological evaluation for petitioner as he "clearly" had "contempt for this whole process and doesn't want to participate unless it comes to the point where there has to be a decision made."
Services for mother and Jacob B. were extended to the next review date, which was set for August 12, 2024. A review hearing for Al.M., who now had placement of A.M. and N.M., was scheduled for November 18, 2024. No section 366.26 hearing was set at that time.
A subsequent ex parte order was received by this court from the Tuolumne Superior Court stating that, because petitioner's services were terminated and a section 366.26 hearing not set, it was ordered set for October 28, 2024. Petition for Extraordinary Writ
We question the setting of the section 366.26 hearing, as mother and Jacob. B. were still receiving services as to C.H. The juvenile court retains discretion to terminate services to one parent even if it does not set a section 366.26 hearing because the other parent is still receiving services. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 878.)
Acting as his own attorney, petitioner now petitions this court for extraordinary writ relief. He seeks a continuation of reunification services and to grant him custody of C.H.
The department opposes the writ petition on both procedural and substantive grounds.
DISCUSSION
Petitioner argues the termination of reunification services was error. "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." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) "For a child under three years of age at the time of removal, ... reunification services are presumptively limited to six months." (Ibid.)
"The reunification phase of dependency proceedings is a critical aspect of the entire dependency system. If the parent fails to reunify with the minor, then the juvenile court must conduct a selection and implementation hearing, which may result in the permanent severance of the parent-child relationship." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 755.) Thus, "terminating reunification services and setting the matter for a permanency planning hearing has potentially serious consequences for a parent." (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009.)
However, "[reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220; see also, e.g., Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 599.) "The goal of family reunification is not served when a parent has shown no interest in reunifying. Because reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented." (In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)
As a general proposition, a juvenile court's rulings are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) A parent seeking review of the juvenile court's orders made at the setting hearing must file an extraordinary writ petition in this court substantively addressing the specific issues to be challenged and supporting that challenge by an adequate record. The purpose of such petitions is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court's findings and orders issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)
We must first address the adequacy of petitioner's writ petition. California Rules of Court, rule 8.452 sets forth the content requirements for an extraordinary writ petition, including that a petition "must be accompanied by a memorandum," which "must provide a summary of the significant facts, limited to matters in the record"; "must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority"; and "must support any reference to a matter in the record by a citation to the record" and "explain the significance of any cited portion of the record and note any disputed aspects of the record." (Cal. Rules of Court, rule 8.452(a)(3), (b)(1)-(3).)
We liberally construe a writ petition in favor of its adequacy where possible, recognizing that a parent representing him or herself is not trained in the law. (See Cal. Rules of Court, rule 8.452(a)(1).) Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Petitioner's petition is inadequate for review. He filed a "PETITION FOR EXTRAORDINARY WRIT" (form JV-825) and checked the box indicating he was requesting this court to direct the juvenile court to "[o]rder that reunification services be continued" and "[r]eturn or grant custody of the child to petitioner," but the form contains no substantive challenge to any findings or orders made at the setting hearing justifying that remedy or any other. In the sections on the JV-825 form that require the petitioner to state the legal grounds for why the court's order was erroneous, he states the order terminating reunification services was made "on falsified/untrue/biased claims." Petitioner alleges further that he only received the reporter's transcripts two days before filing the writ petition and had "not yet had sufficient time to review all false statements," but "[w]ithin the first few pages [had] already found multiple issues."
While petitioner's petition is insufficient for us to address petitioner's claim, we have nevertheless reviewed the entire record on appeal and find no error on the juvenile court's part in terminating petitioner's reunification services. The evidence in the record shows petitioner did not sign or agree to the case plan, he did not follow through with any of the services offered, and he was ambivalent as to whether he even wanted to continue to participate in services or be a part of the case.
Considering the evidence of petitioner's lack of progress in the reunification services offered, we find no basis for overturning the challenged order.
DISPOSITION
The petition for extraordinary writ is denied on the merits. This decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i) &8.490(b)(1)(A).)
[*] Before Franson, Acting P. J., Meehan, J. and De Santos, J.