Opinion
F061865 Super. Ct. No. JD123811 Super. Ct. No. JD124222 Super. Ct. No. JD124223
09-15-2011
In re ADRIAN T., JR. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ADRIAN T., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Adrian T. (father) appeals from the juvenile court's order terminating reunification services with his three young children. We affirm the court's order.
FACTUAL AND PROCEDURAL HISTORIES
Father and Marcella C. (mother) are the parents of Adrian T., Jr., a boy born in 2009, and twin girls, Adriana T. and Miranda T., born in 2010. The parents have a history of domestic violence. On November 12, 2009, police responded to a report of domestic violence at their apartment. Mother, who was pregnant with the twins at the time, reported that father pushed her down on the grass and began striking her. Mother also stated that there had been previous unreported domestic violence incidents. On March 22, 2010, police responded to another report of domestic violence. Mariah C., mother's nine-year-old daughter from an earlier relationship, was present in the home. Mariah saw father grab mother by her hair and strike her head against the wall twice. She also saw him slap her mother on the face. At this point, mother was seven months pregnant.
On March 25, 2010, Adrian, Jr., and Mariah (who is not a subject of this appeal) were taken into protective custody. On March 29, 2010, the Kern County Department of Human Services (Department) filed a juvenile dependency petition on behalf of Adrian, Jr., alleging that he was at risk of harm based on his parents' violent relationship. (Welf. & Inst. Code, § 300, subd. (b) [failure to protect].) At the initial hearing on March 30, 2010, the Department sought to detain Adrian, Jr. Father stated that he was moving in with his grandmother and would stay away from mother. The juvenile court ordered Adrian, Jr., not to be detained and to be placed in the care and custody of mother. Father was not to have any contact with mother but was allowed supervised visitation with Adrian, Jr., twice weekly.
Subsequent statutory references are to the Welfare and Institutions Code.
At a jurisdictional hearing on May 7, 2010, the juvenile court found the allegations of the petition true. A dispositional hearing was scheduled for June 8, 2010.
Mother gave birth to twin girls, Adriana and Miranda. On May 25, 2010, the Department filed juvenile dependency petitions on their behalf based on the same allegations in Adrian, Jr.'s, petition. (§ 300, subds. (b) [failure to protect] & (j) [abuse of sibling].) On May 26, 2010, the juvenile court ordered the twins detained from father and placed with mother. Father was allowed weekly visits. A joint jurisdictional and dispositional hearing for the twins was scheduled for the same day as the dispositional hearing for Adrian, Jr.
A social study prepared for the dispositional hearing reported that father had enrolled in domestic violence counseling but did not start the counseling because of lack of money. He was scheduled to serve nine days in jail in June 2010. In a March 2010 drug test, father tested positive for amphetamine and methamphetamine. He had visited his son twice and had not asked for visitation with the twins. The Department concluded that father had made "no progress toward alleviating or mitigating the circumstances [that] led to the children's removal. He has not started counseling, has not been regularly visiting with his children, and does not have a stable residence."
At the hearing on June 8, 2010, Adrian, Jr., Adriana, and Miranda were adjudged dependents of the court. Family maintenance services were ordered for mother. Mother was ordered to have counseling for domestic violence and parenting and to submit to random drug tests. The children were ordered removed from father's physical custody. Reunification services were ordered for father. He was ordered to have counseling for domestic violence, parenting skills, and substance abuse and to submit to random drug tests on at least a monthly basis. He was granted supervised visitation twice a week for one hour. The juvenile court advised father that, because the children were under age three at the time of the initial removal, his failure to cooperate and avail himself of services could result in the termination of services after six months. A review hearing was scheduled for six months later, on December 8, 2010.
On November 9, 2010, the Department sent father notice regarding the December 8, 2010, hearing. The notice provided that the social worker recommended termination of his family reunification services. According to a social study prepared on November 24, 2010, father had not made himself available to the Department for drug testing and had not enrolled in substance abuse counseling. He had enrolled in domestic violence counseling at the Professional Group but was dropped for nonattendance. Father had not contacted the Department to arrange supervised visits with his children and did not respond to the Department's attempts to contact him.
Following the June 2010 dispositional hearing, mother was not successful with her family maintenance services. As part of her family maintenance services case plan, mother was required to submit to drug testing, but she failed to drug test six different times. In November 2010, she tested positive for amphetamine. Mother also failed to make herself available to the Department, preventing the Department from checking on the welfare of the children. Despite court orders that father stay away from mother and see the children only through supervised visits, on August 1, 2010, mother and the children were seen with father at a shopping mall. On September 29, 2010, a social worker tried to visit mother at home. At the door, the social worker could hear male and female voices inside, but no one would answer the door after repeated knocking. On October 4, 2010, the social worker again went to mother's home. She could hear a "loud angry interaction between [mother] and an adult male," as well as a baby crying, but again, no one answered the door. Mother told her social worker that she had enrolled in a parenting class at the Bakersfield Adult School, as required by her case plan, but the Department later learned that she had not enrolled in the class. Mother was also required to take domestic violence counseling, but she had not enrolled in counseling as of November 23, 2010.
As a consequence of mother's noncompliance, the Department decided to detain Adrian, Jr., Adriana, and Miranda. On November 24, 2010, a social worker spoke to mother by telephone and told her that she would be required to deliver the children to the Kinship Center (a Department office) by 3:00 p.m. Mother agreed to do so. Mother, however, did not bring them, and the Department contacted various relatives of mother and father, trying to locate the children. The Department was unable to find the children, but the maternal grandmother reported that mother's brother had taken her and her children to his home in Shafter, so she could "'keep the kids with her until after Thanksgiving.'"
On November 30, 2010, the Department filed supplemental petitions on behalf of all three children, seeking to remove them from mother's custody based on her failure to drug test, her positive drug test, and her failure to allow the Department to check on the welfare of the children. The same day, a hearing was conducted. The Department informed the juvenile court that it was unable to locate the children and requested protective custody warrants. Mother did not appear at the hearing. Father was present with an attorney. His attorney told the court that father was starting parenting class that day, he was going to his first domestic violence counseling that week, and he was going to inquire about substance abusing counseling that day. The juvenile court set mediation and a hearing for January 6, 2011, and a jurisdictional and dispositional hearing for January 13, 2011.
At the Department's request and by stipulation of all the parties, the review hearing that had been scheduled for December 8, 2010, was continued to January 13, 2011. On December 10, 2010, the paternal grandfather released the twins Adriana and Miranda to the Department. As of January 6, 2011, the Department was still unable to locate Adrian, Jr., or mother.
On December 15, 2010, father had an appointment with a social worker. He brought his own father (who had surrendered the twins to the Department). Father provided verification that he was scheduled for substance abuse counseling and that he had started domestic violence counseling. He said he would enroll in parenting class no later than December 21, 2010. The social worker tried to set a visitation schedule, but father wanted to wait until after he attended substance abuse counseling because he did not know what his schedule would be. Father had a negative drug test the next day, although a social worker reported that his behavior was suspicious when he provided the urine sample.
Mediation scheduled for January 6, 2011, did not occur because mother did not appear. Father did appear, but there were no new allegations against him.
On January 13, 2011, mother was present for the juvenile court hearing (a combined review, jurisdictional, and dispositional hearing), to the surprise of her own attorney. Mother, through her attorney, told the court that Adrian, Jr., was at her home and that she would deliver him to the Department. The hearing was continued to January 28, 2011.
On January 28, 2011, father and mother were present for the combined hearing. Father's attorney informed the court that father had enrolled in domestic violence classes, had attended six sessions, and had 20 sessions to go. He was enrolled in substance abuse counseling, which started on January 10, 2011, and had attended seven sessions. He was also enrolled in parenting class, starting on January 25, 2011, and had attended one session of the eight-week course. He had submitted to three drug tests. Finally, father had a two-bedroom condo and was ready to take custody of the children.
The juvenile court concluded that the children should not be returned to father and reunification services should be terminated, explaining:
"Unfortunately, sometimes in these situations, one parent relies upon the other parent to take care of the problem with regard to the children and doesn't address their own issues in regard to the children. And eventually they are disappointed by what the other parent does or hasn't done, and that's where we are today.
" ... In regard to his three children, their status is reviewed under Section 366.21(e)....
"There has been no progress by the father toward alleviating or mitigating the causes for his children's placements in out-of-home care. He has not made acceptable efforts. He has not availed himself of services provided to facilitate a return of the children to his care.
"The Court finds that a return of the children to the father's custody would create a substantial risk of detriment to the children's safety and well-being.
"Those children were under the age of three at the time they were initially removed from the parents' custody and there is clear and convincing evidence that the father has failed to participate regularly and make substantive progress in a court-ordered treatment plan; therefore, there is not a substantial probability that the children may be returned to the father within six months and family reunification services are ordered terminated."
With respect to mother, the juvenile court ordered Adrian, Jr., Adriana, and Miranda removed from her physical custody. The court found that mother had made minimal progress toward alleviating or mitigating the causes for the children's removal, but ordered family reunification services for mother for a period not to exceed six months.
DISCUSSION
When a child is removed from parental custody, the juvenile court must (except in certain situations not raised in this case) order the social worker to provide reunification services to the parent. (§ 361.5, subd. (a); In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) For children who are under three years of age at the time of removal from custody, court-ordered services must be provided for a period of six months from the disposition hearing, but no longer than 12 months from the date of the jurisdictional hearing. (§§ 361.5, subd. (a)(1)(B), 361.49.)
A review hearing is held six months after the initial dispositional hearing. (§ 366.21, subd. (e).) "If the child was under three years of age on the date of the initial removal, ... and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26[] within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal ..., may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (Ibid.)
Section 366.26 provides the mechanism for termination of parental rights and the selection and implementation of a permanent plan for the dependent child. (See In re S.B. (2009) 46 Cal.4th 529, 532.)
In this case, Adrian, Jr., Adriana, and Miranda were all under three years old on the date of initial removal from father's custody. Father was offered six months of reunification services as required under section 361.5, subdivision (a)(1)(B). The record supports the court's findings that father did not make acceptable efforts and failed to participate regularly and make substantive progress in his court-ordered case plan. Father failed to attend any counseling, failed to make himself available for drug testing, and failed to have supervised visits with his children from June 8, 2010 (the date of the initial dispositional hearing), until at least November 24, 2010 (the date of a social study prepared for the six-month review hearing). Father does not dispute these facts. Rather, he asserts that, by the end of the six-month reunification period, he was making substantive progress. It appears, however, that father did not start substance abuse counseling and parenting classes until January 2011—after the six-month period had passed. Even assessed from the date of the review hearing on January 28, 2011, father did not demonstrate regular participation or substantial progress; he only started his parenting class three days before the review hearing. To the extent father's argument is that the juvenile court erred in finding that he failed to participate regularly and make substantive progress in his court-ordered plan, we are not persuaded.
Father contends that, even if his own efforts were inadequate and his progress was limited, the court's decision to terminate his services while allowing mother to continue services was an abuse of discretion. As father acknowledges, however, "[t]he court's determinations regarding whether to offer services, and which particular services to offer, are necessarily made as to each parent individually." (In re Jesse W., supra, 157 Cal.App.4th at p. 59.) "[A]t each review hearing, the court must evaluate the efforts or progress toward reunification made by each parent individually by considering 'the extent to which he or she availed himself or herself to services provided.' [Citations.]" (Id. at p. 60.)
Here, father had six months to complete a parenting class, participate in domestic violence and substance abuse counseling, submit to drug testing, and have supervised visits with his children. After five-and-a-half months, he had not done any of these things. By the January 28, 2011, hearing (about eight months after the reunification services case plan was ordered), father started, but had not completed, his case plan components. Under these circumstances, the juvenile court was not required to continue father's services. In other words, the court did not abuse its discretion by not extending reunification services to father for another six months.
DISPOSITION
The juvenile court order is affirmed.
Wiseman, Acting P.J. WE CONCUR: Levy, J. Kane, J.