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J.K. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 20, 2009
No. F056946 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

THE COURT

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Super. Ct. No. 07CEJ300166-1, 2, 3, 4, Jane Cardoza, Judge.

J.K., SR., in pro per., for Petitioner.

No appearance for Respondent.

Kevin B. Briggs, Interim County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.


OPINION

Petitioner (father) in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 18-month review hearing denying his motion to continue services pursuant to Welfare and Institutions Code section 352 and setting a section 366.26 hearing as to his stepsons J.S. and N.S. and biological children J.K., Jr. (hereafter J.K.) and I.K. Because J.S. and N.S. are not petitioner’s biological children, he does not have standing to challenge the juvenile court’s orders as to them. Consequently, we will not review them. Nevertheless, we will refer to J.S. and N.S. in our factual summary because petitioner and the children’s mother, A.K., (hereafter mother) are an intact married couple and petitioner seeks to reunify with all four children. We will deny the petition.

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

A.K. also filed a writ petition, which is pending before this court (F056949).

STATEMENT OF THE CASE AND FACTS

In June 2007, at the initiation of these dependency proceedings, petitioner and mother were raising mother’s two sons from a prior marriage, then five-year-old J.S. and four-year-old N.S., as well as petitioner and mother’s two biological children, then two-year-old J.K. and 14-month-old I.K. In late June 2007, authorities responded to a report of domestic disturbance at petitioner’s apartment. Mother told the responding police officer she and petitioner were splitting up. Each told the officer they wanted the other removed from the home. Immediately upon entering the apartment, the officer detected a strong odor of feces and urine coming from the bathroom and bedroom area. There were feces, urine and dirty diapers on the bathroom floor. The bedroom floor was covered with clothes and bags of garbage. In the kitchen, the officer saw vomit in the kitchen sink along with dirty dishes and food on the floor and walls. Mother said petitioner drank so much the night before that he threw up and did not clean it up. Several times petitioner and mother got into screaming matches, using the “F” word in front of the children. Mother told the police officer she worked the graveyard shift and, while she worked, petitioner locked the children in a back bedroom and smoked marijuana and drank beer in the garage with his friends. Petitioner told the officer mother locked the children in the back bedroom when he was at work. He said he returned home several times and found them still locked in the room where they had defecated and urinated on the floor. Petitioner took the officer into the garage and showed him where he grew marijuana and his medical certificate to grow it. Petitioner said he needed time to smoke marijuana and drink beer with his friends and expected mother to clean up the house. He said the children should be placed with child protective services because he and mother could no longer handle them.

The department of social services (department) took the children into protective custody and filed a dependency petition on their behalf, identifying petitioner as J.K. and I.K.’s father and L.S. as J.S. and N.S.’s father. In September 2007, the juvenile court sustained the petition following a contested jurisdictional hearing. The children were placed together with their maternal aunt and her husband.

In October 2007, the juvenile court granted the department discretion to arrange unsupervised visitation for petitioner, mother and the children. The court also ordered reunification services for petitioner and mother as well as for L.S. Petitioner’s services plan required him to participate in parenting classes, substance abuse, mental health and domestic violence evaluations, and random drug testing.

The children did not remain together for very long. In November 2007, J.S., N.S. and J.K. were removed from their maternal aunt’s home at her request. J.S. and N.S. were placed with their maternal grandmother and J.K. was placed in foster care. However, in early February 2008, N.S.’s maternal grandmother stated N.S. was out of control and very violent and she could no longer care for him. He was removed and placed in foster care. In March 2008, J.S. was removed from his maternal grandmother’s care for the same reasons and placed in foster care.

Petitioner and mother complied with their services plans and, by August 2008, had made significant progress. However, the children were not faring so well. J.S. had been placed in five different homes, N.S. in six, J.K. in four and I.K. in five. In addition, J.S. had been diagnosed with Attention Deficit Hyperactivity Disorder and a learning disorder and was struggling academically. All three boys were participating in individual therapy for behavioral problems.

In August 2008, petitioner and mother began unsupervised visitation for four hours each week with the children. The children’s foster parents reported the children returned from the visits in good spirits and appeared to enjoy their time with their parents. J.S. and N.S. stated they enjoyed visiting petitioner and mother and wished they could live with them. The social worker recommended the court order conjoint therapy for the four children with petitioner and mother when deemed therapeutically appropriate.

In September 2008, the juvenile court granted the department discretion to increase the duration of the unsupervised visits. That same month, the department scheduled two back-to-back 12-hour unsupervised visits. Near the end of the second day of visitation, petitioner slapped then four-year-old J.K. in the mouth, causing his nose to bleed after J.K. persisted in calling petitioner “poopie head” and after multiple timeouts did not correct his behavior. Petitioner promptly informed the foster parents and the case manager and admitted his reaction was inappropriate. Nevertheless, supervised visitation was reinstated.

In its 12-month status review, the department reported the prognosis for returning the children to petitioner and mother’s custody was good. Consequently, the department recommended the court continue their services to the 18-month review hearing and advance them to unsupervised visitation. The department also recommended the court terminate services for L.S.

In October 2008, at the 12-month review hearing, the juvenile court continued reunification services for petitioner and mother to the 18-month review hearing which it set for December 2008. The court granted the department discretion to arrange unsupervised visitation and ordered conjoint therapy for petitioner, mother, and the four children when therapeutically appropriate. The court also terminated reunification services for L.S.

Prior to the 18-month review hearing, the social worker solicited a recommendation from the children’s therapists and the visitation therapist as to whether the children should be returned to petitioner and mother’s custody. The therapists for J.S., N.S., and J.K. recommended against reunification and did not advise conjoint therapy.

N.S.’s therapist reported N.S. was unable to regulate his emotions, which the therapist opined was a normal response given N.S.’s strong history of chronic abuse and neglect. The therapist also stated N.S.’s suicidal ideation, disruptive behaviors, and acting out were linked to his biological environment. The therapist opined more severe responses and behavioral problems would result from returning him to his biological home.

J.S. and J.K.’s therapist reported petitioner and mother attended a collateral therapy session in October 2008 to evaluate the appropriateness of conjoint therapy. During the session, petitioner and mother were argumentative and disagreed on parenting practices. At one point, the therapist reported, petitioner shut down and would not speak to or look at mother or the therapist for two to three minutes. The therapist reported petitioner and mother did not take responsibility for their children being in foster care stating the children were removed on a “technicality” because their home was dirty and because the emergency social worker did not like them. During the session, the therapist addressed the incident when petitioner hit J.K. in the face. Petitioner minimized the incident, stating “it really didn’t hurt him.” As a result of the session, the therapist did not recommend conjoint therapy. Further because J.S. and J.K. were noticeably more disruptive and noncompliant following increased visitation with petitioner and mother, the therapist recommended against reunification.

The visitation therapist deferred to the children’s individual therapists but stated she had seen positive changes both in the parents’ skills and the children’s behavior since November 2008. She also stated the children were very bonded to each other and to petitioner and mother.

Petitioner and mother’s therapist also provided input to the social worker. He stated it was possible some of the children’s most dysfunctional behaviors could be the result of wanting to live with the family. He opined the behavioral/emotional issues the male children manifested made them poor candidates for a stable, long-term placement and the children would probably function as well or better in the care of their parents than in the care of foster or adoptive parents. He recommended the court order a bonding study and offer family maintenance services while returning the children to parental custody on a liberal visitation schedule monitored by a social worker.

By December 2008, J.S. and J.K. were placed together and reportedly stable in their foster home for nine months. I.K. was in a separate foster home where she had been for seven months and N.S. was in his ninth placement where he had been for a month. The foster parents for J.S., N.S., and J.K. were willing to offer the boys long-term foster care. I.K.’s foster parents were willing to consider legal guardianship or adoption but had not committed to either.

In its 18-month status review, the department reported petitioner and mother regularly visited the children twice weekly and visits seemed to go well. There had been a few instances where petitioner and mother were unable to handle the children’s behavior and asked to have N.S. removed from the visits. The department also reported mother made significant progress and petitioner moderate progress in resolving the problems requiring the children’s removal and both demonstrated the capacity and ability to complete their court-ordered services. However, they had not demonstrated the ability to provide for the children’s needs and safety. Consequently, the department recommended the court terminate reunification services and proceed to permanency planning.

In January 2009, the juvenile court conducted the contested 18-month review hearing. Mother’s attorney filed a motion for a continuance pursuant to section 352 in open court. Petitioner joined in the motion. In the motion, mother argued that the children’s behavioral problems resulted in numerous moves and that mother and father, if given more time, could safely resume custody of them. Further, since the boys’ foster parents were not willing to offer more than foster care placement, a continuance would not be contrary to the boys’ interests. The court denied the motion without prejudice and proceeded to the 18-month review hearing.

We grant real party in interest’s request to take judicial notice of a certified copy of mother’s motion for a continuance filed on January 20, 2009, in the juvenile court. (Evid. Code, §§ 455, subd. (a), 459.)

The social worker testified she would have recommended continuing reunification services if more time were allowed by statute as she believed attempting to reunify was always in the family’s best interest. However, she also believed it would be detrimental to return the children to petitioner and mother’s custody. She observed improvement in petitioner and mother’s ability to regulate the children’s behavior since they began therapeutic supervised visitation and she believed N.S.’s placement resulted in his improved behavior. However, in the end, the therapists’ recommendations and the children’s behavior formed her opinion to recommend termination of services.

At the conclusion of the hearing, the juvenile court denied the motion for a continuance based on the children’s need for permanency, petitioner and mother’s inability to control the children, and the uncertainty surrounding the time required to safely return them to parental custody. In making its decision, the court stated it weighed most heavily the recommendations of the children’s therapists. It stated the visitation therapist did not make a clear statement of support to continue services. Further, the court gave little weight to the parents’ therapist’s recommendation for family maintenance, given the extensiveness of services already provided.

After its ruling on the motion for a continuance, the court found the department provided reasonable services and it would be detrimental to return the children to parental custody. The court terminated reunification services and set a section 366.26 hearing.

Petitioner filed a timely notice of intent from the juvenile court’s setting order. In April 2009, he appeared for oral argument.

DISCUSSION

Petitioner argues the juvenile court erred in denying his request for additional time to reunify with his children. He points to the many court-ordered services he completed and his children’s special needs as factors warranting continued services. He claims he has changed in many ways since the children were removed. Petitioner also takes issue with the juvenile court’s reliance on the opinion of J.K.’s therapist in deciding to terminate his reunification services since, he contends, the therapist never observed him interact with his children. Nor, he claims, did J.K.’s therapist solicit input from others who observed him with his children on a regular basis. He also questions why he and the children were never afforded conjoint therapy.

At the 18-month review hearing, the juvenile court must return the child to parental custody unless the court finds, by a preponderance of the evidence, that returning the child to the parent would place the child at a substantial risk of harm. (§ 366.22, subd. (a).) If the court decides it is not safe to return the child, then, by law, the juvenile court must terminate reunification services and set a section 366.26 hearing to select a permanent plan for the child. (Ibid.) This is true even if the parent fully complied with the court-ordered services because a parent’s compliance does not always mean the child would be safe in the parent’s custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)

In reviewing a juvenile court’s ruling at the 18-month review hearing, we can only consider the evidence that was before the juvenile court. (People v. Merriam (1967) 66 Cal.2d 390, 396-397.) In addition, we cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).) Rather, we examine the entire appellate record to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, to support the juvenile court’s finding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) In so doing, we view the evidence in a light most favorable to the juvenile court’s findings and conclusions, defer to the juvenile court on issues of credibility, resolve all conflicts in the evidence in support of the juvenile court’s findings and draw all legitimate inferences to uphold the juvenile court’s decisions. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) If there is any substantial evidence to support the juvenile court’s decision, we must affirm it. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

In this case, petitioner completed his court-ordered services but the juvenile court decided it was not safe to return his children to him. In making that decision, the court relied heavily on the opinions of the children’s therapists who recommended against reunification and conjoint therapy. On the other hand, the court did not give any weight to the opinion of petitioner’s therapist even though it appeared to be more favorable to him. As we stated earlier, the juvenile court can give the evidence any weight it wishes and we will not substitute our judgment. Further, we can only review the record before us. Consequently, we cannot speculate upon favorable evidence that could have been presented at the hearing but for some reason was not.

Viewing the evidence in a light most favorable to the juvenile court, as we must, we conclude the evidence on the appellate record is reasonable, credible, and of solid value such that the juvenile court could reasonably conclude it was not safe to return petitioner’s children to him and that an order terminating his reunification services was appropriate. In other words, we conclude substantial evidence supports the juvenile court’s finding of detriment and order terminating reunification services.

That said, there is case authority for continuing reunification services beyond 18 months under limited circumstances: (1) no reunification plan was ever developed for the parent; (2) the juvenile court finds reasonable services were not offered; or (3) the best interests of the child would be served by a continuance of the 18-month review hearing. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) Petitioner was provided a plan of reunification, so the first circumstance does not apply to him. The second circumstance applies to the extent petitioner argues he was not provided conjoint therapy. However, in this case, it was not unreasonable because J.S.’s therapist advised against it. The main thrust of petitioner’s argument relates to the third circumstance; i.e. whether continuing reunification services beyond the 18-month review hearing would serve his children’s best interests and whether the juvenile court erred in not continuing them under the provisions of section 352.

Section 352 allows the juvenile court to continue any dependency hearing beyond the time limit within which it is required to be held, provided the continuance is not contrary to the child’s best interests. (§ 352, subd. (a).) In considering a child’s interests, the court must give substantial weight to the child’s need for prompt resolution of his or her case, the need to provide the child with a stable environment and the damage that prolonged temporary placements might cause the child. (Ibid.) Further, the statute provides, “[c]ontinuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (Ibid.)

Where the juvenile court has discretion to do or not do something, such as grant or deny a continuance, we review its decision to determine if it abused its discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) Under the abuse of discretion standard, we will not overturn a juvenile court’s decision unless there is a clear showing the juvenile court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (Stephanie M., supra, 7 Cal.4th at p. 318.)

In this case, while there is evidence favoring an order continuing services (i.e. petitioner’s progress, the strong parent/child bond, the children’s desire to return home and the prospect of long-term foster care), we cannot say the juvenile court abused its discretion in denying petitioner’s request for a continuance. Petitioner’s children were removed because of severe neglect and, after 18 months, petitioner and the children’s mother could still not handle them even for a 24-hour period without calamity. If they cannot effectively parent the children for a day, one has to wonder how they would successfully reunify given the children’s special needs. Further, without a concrete timeframe in which to expect success, there was not guarantee the children could be returned to their custody after 24 months of services.

Given the facts in this case and the legal standards that guide our review, we conclude the juvenile court did not abuse its discretion by denying petitioner’s motion for a continuance. Nor do we find error in the court’s order setting a section 366.26 hearing to implement a permanent plan.

DISPOSITION

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


Summaries of

J.K. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 20, 2009
No. F056946 (Cal. Ct. App. Apr. 20, 2009)
Case details for

J.K. v. Superior Court (Fresno County Dept. of Children & Family Services)

Case Details

Full title:J.K., SR., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:California Court of Appeals, Fifth District

Date published: Apr 20, 2009

Citations

No. F056946 (Cal. Ct. App. Apr. 20, 2009)