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Justice v. Superior Court of Mariposa County

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
F043798 (Cal. Ct. App. Nov. 24, 2003)

Opinion

F043798.

11-24-2003

JUSTICE A., Petitioner, v. THE SUPERIOR COURT OF MARIPOSA COUNTY, Respondent, MARIPOSA COUINTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.

Stephanie A. Holland, for Petitioner. No appearance for Respondent. Jeffrey G. Green, County Counsel, and Michael A. Fagalde, for Real Party in Interest.


OPINION

THE COURT

Petitioner, father of minor A., seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In May 2002, the Stockton Police Department removed then 10-month-old A. from the custody of his mother, Michelle, after petitioner obtained a temporary custody order from the Mariposa County Superior Court. However, at the time, petitioner and Michelle were receiving voluntary maintenance services because petitioner physically abused Michelle and A. Consequently, the Mariposa County Department of Human Services (department) interceded and took A. into protective custody. The department also filed a dependency petition in the San Joaquin County Superior Court sitting as the Juvenile Court (juvenile court) alleging Michelles mental disability and petitioners physical abuse placed A. at risk of harm. (§ 300, subd. (b).) A. was placed with his paternal great-grandparents in Mariposa.

The juvenile court sustained the allegations and ordered reunification services for both parents. Petitioner was required to complete programs in parenting, anger management and domestic violence and participate in individual counseling. The court also ordered weekly-supervised visitation.

Over the next six months, petitioner participated in all aspects of his case plan except individual counseling. Michelle, on the other hand, was not complying with her case plan. Consequently, the court ordered the case transferred to Mariposa County where petitioner and A.s great-grandparents resided. In April 2003, the juvenile court accepted the case and continued the case plan in effect without modification. The juvenile court set the 12-month review hearing for June 16, 2003.

In its 12-month status review, the department reported that petitioner was resisting individual therapy. While he completed an initial assessment in May 2003, he refused to follow through with individual counseling sessions. This caused the department concern because the examining clinician concluded petitioner manifested narcissistic and codependent personality traits which could interfere with his ability to parent a child. In addition, petitioners grandparents reported that petitioner was indifferent to A. and, at times, threatening to them. For example, petitioner lived in a mobile home on his grandparents property, placing him within 50 yards of his son. Yet, he refused to visit his son more than once a week. Petitioners grandparents reported an instance when petitioner went to their home to borrow their telephone. Although he had not visited A. for several days, petitioner refused to acknowledge A. When petitioners grandfather asked if he was going to speak to his son, petitioner became enraged and threatened, "If you were not my grandfather, Id just thrash you." At a family barbecue, petitioner watched passively as A. approached the hot barbecue. After other family members rushed to protect A., petitioner remarked, "He wouldnt do it again if he got burned." The grandparents also reported that, after a one-hour unsupervised visit in June 2003, petitioner returned A. to their home broken out in hives and crying uncontrollably. Petitioner left without speaking. It was several days before A. could sleep without first crying and clinging to his great-grandparents. A spontaneous remark petitioner made also disturbed petitioners grandparents. He asked whether an autopsy would be performed if it were against the belief of the family. When told that it would be, he asked, "What if it were a child?"

The department concluded that petitioner was unable to bond with or relate to his child and had failed to ameliorate that problem by participating in individual mental health counseling. Therefore, the department recommended the court find that petitioner failed to make substantive progress in his case plan and recommended the court terminate reunification services.

Petitioner challenged the departments recommendation and the matter was set for a contested 12-month review hearing. In an addendum report prepared for the hearing, the department reported that petitioner had completed two individual counseling sessions. Counsel for petitioner filed a hearing brief arguing there was insufficient evidence that return of A. to petitioner would be detrimental to A. and alternatively, there was a substantial probability A. would be returned to petitioners custody if services were continued to the 18-month review hearing.

The contested 12-month review hearing was conducted on August 28, 2003. Counsel for petitioner referenced her hearing brief and simply argued that services should be continued for the full 18 months. The court found reasonable services had been offered and that petitioner failed to make substantive progress in his case plan. Accordingly, the court terminated reunification services and set the matter for a section 366.26 hearing scheduled for December 15, 2003. This petition ensued.

DISCUSSION

I. Substantial evidence supports the juvenile courts findings petitioner failed to make substantive progress in his court-ordered plan and that return of A. to petitioners custody would create a substantial risk of detriment to A.

Petitioner claims his only court-ordered requirement was to complete a program in anger management and domestic violence, which he claims he did with excellent results. He therefore argues the juvenile court erred in finding he failed to make substantive progress in his court-ordered plan. He also argues there was insufficient evidence to support the juvenile courts finding he posed a risk of detriment to his son. We find his arguments meritless.

In order to retain jurisdiction over a minor child at the 12-month review hearing, the juvenile court must find by a preponderance of the evidence that return of the minor to parental custody would create a substantial risk of detriment to the minors safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) The parents failure to participate regularly and make substantive progress in a court-ordered treatment program is prima facie evidence of detriment. (Ibid.) We review the juvenile courts finding of detriment for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

In this case, petitioners case plan also required him to participate in individual counseling. However, he refused to do so until the eve of the 12-month review hearing. His failure to regularly participate in individual counseling constitutes prima facie evidence of detriment. Moreover, petitioners callous indifference toward A. and his apparent mistreatment of A. during the unsupervised visit in June 2003 provide further evidence A. would be at risk of harm if placed in petitioners custody. We therefore conclude substantial evidence supports the juvenile courts findings petitioner failed to make substantive progress in his court-ordered plan and that return of A. to his custody would pose a substantial risk of detriment to A.

Further, while petitioner correctly argues the juvenile court did not articulate a factual basis for its finding of detriment, he is incorrect in his assertion that such an omission constitutes error. As a reviewing court, we can infer a finding where, as here, it is supported by substantial evidence. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83.)

II. Substantial evidence supports the juvenile courts finding petitioner was provided reasonable services.

Petitioner argues he was not provided reasonable services because the department did not inform him that counseling was available on a sliding scale fee basis. Otherwise, he claims, he would have initiated counseling services as soon as the case was transferred to Mariposa County. He also claims that visitation was thwarted by his grandparents, apparently arguing the department failed to intercede. The record does not support his claims.

The juvenile court must determine at the 12-month review hearing whether the offending parent was offered or provided reasonable services. (§ 366.21, subd. (f).) Reasonable services were provided if the supervising agency offered services designed to remedy the problems requiring removal of the child and made reasonable efforts to facilitate compliance. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

Petitioners case was transferred to Mariposa County in mid-April 2003. The issue of payment did not arise until late May 2003 when petitioner went for his initial assessment. At that time, he discovered that he would have to pay at least $37 a year for counseling services. According to the caseworker, he was very angry that he had to pay at all. Yet, there is no evidence that petitioner was unable to afford the required fee. The record does reflect that petitioner had his first counseling session on July 17, 2003, and another one before the 12-month review hearing in August 2003. Therefore, the record does not support petitioners contention that the department caused his delay in initiating counseling by not informing him of the fee scale. Instead, one could conclude, on this record, that petitioner delayed in initiating individual counseling.

Further, there is no evidence that petitioners grandparents prevented him from visiting A. On the contrary, they allowed him to live on their property within 50 yards from their home and, according to the record, encouraged him to interact with A. However, despite his proximity to his son and the opportunity to bond with him, petitioner refused to visit A. more than once a week. Rather than support a finding the department failed to facilitate services, the record reflects petitioners refusal to cooperate and take advantage of services. We find no error.

III. Substantial evidence supports the juvenile courts finding there was not a substantial probability A. would be returned to petitioners custody if reunification services were continued to the 18-month review hearing.

Petitioner argues the juvenile court erred in not continuing reunification services to the 18-month review hearing. We disagree.

At the 12-month review hearing, the juvenile court may continue services for up to six months if the court finds there is a substantial probability that the child will be returned to the physical custody of his parent within the extended period of reunification. (§ 366.21, subd. (g)(1).) In order to make such a finding, the court must find the parent met the following three requirements: (1) regularly visited the child; (2) made significant progress in resolving the problem prompting removal of the child; and (3) demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and well-being. (§ 366.21, subd. (g)(1).)

We disagree with petitioners contention that he met all three requirements. There is no evidence that, after 12 months of services, he had gained any insight into his abusive conduct and how it affected his ability to care for his son. Nor did he present any evidence that he could achieve such insight if given another six months of services. Accordingly, we find no error in the courts finding.

IV. Petitioner was not denied due process.

Petitioner argues the juvenile court denied him the opportunity to present evidence contained in his hearing brief. Therefore, he was denied due process. We disagree.

In dependency proceedings, due process has been satisfied where, as here, the parent was afforded counsel and the right to present evidence. (§§ 317, 341.) In this case, counsel for petitioner did not ask to present any evidence in addition to what was contained in her hearing brief. She did not ask to call any witnesses or make any offers of proof. Nor did she object when the court proceeded to make its findings and orders. Therefore, on this record, we must conclude that petitioner was not denied his due process right to present evidence. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.


Summaries of

Justice v. Superior Court of Mariposa County

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
F043798 (Cal. Ct. App. Nov. 24, 2003)
Case details for

Justice v. Superior Court of Mariposa County

Case Details

Full title:JUSTICE A., Petitioner, v. THE SUPERIOR COURT OF MARIPOSA COUNTY…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 24, 2003

Citations

F043798 (Cal. Ct. App. Nov. 24, 2003)