Opinion
F054604
4-21-2008
K.K., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF CHILDREN & FAMILY SERVICES, Real Party in Interest.
Michael D. Culy and James F. Tritt, Attorneys for Petitioner. No appearance for Respondent. Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, A.P.J., Harris, J., and Cornell, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) (rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughters G. and N. We conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, we will dismiss the petition as facially inadequate.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and her live-in boyfriend J., both of Hindu Indian descent, are the parents of three daughters, including G. and N. who are the subjects of this writ petition. Petitioner and J. were assisted throughout these proceedings by translators in their native language of Punjabi.
J. did not file a writ petition.
The family first came to the attention of the social services department (department) in October 2006 when then 17-month-old G. was evaluated at the hospital for a neck fracture. Petitioner explained that G. was rocking on a chair and fell. J., a long haul truck driver, was not present at the time of the injury. Just two months before, in August, G. was evaluated for a fracture of the left fibula. Petitioners explanation was that G. fell off of the bed. Concerned about the lack of supervision or possible physical abuse, the department provided assistance through voluntary family maintenance services.
In November 2006, petitioner gave birth to N. at which time both tested positive for methamphetamine. A social worker from the department discussed petitioners positive drug test with her at the hospital. Petitioner denied taking methamphetamine and stated she did not even know what it is. When told it is a form of speed sold on the streets, she stated that Indian women do not use street drugs or drink alcohol. She said she had only used sleeping pills and some "Motrin" that J. had given her.
J. also claimed ignorance of methamphetamine and denied that he and/or petitioner used drugs. While discussing the matter with J. at the family home, the social worker observed a young girl approximately seven or eight years of age playing with G. J. introduced the girl as "S." and said she was his young cousin.
In December 2006, petitioner and J. submitted hair follicles for drug testing. Petitioners and J.s tests were positive for methamphetamine at high levels indicating J. was using methamphetamine daily and that petitioner was using methamphetamine one to two times a week and that both were using methamphetamine when G. sustained her fractures. Confronted with this information, J. explained that six months prior, he found a bottle with liquid and powder in his truck, which he believed was an herbal elixir. He used it and gave it to petitioner for her stomach problems.
However, when in January 2007, J. tested positive for methamphetamine and petitioner failed to drug test, the department removed then 20-month-old G. and 1-month-old N. from petitioner and J.s custody and filed a dependency petition on the childrens behalf alleging the parents continuing drug abuse placed the children at risk of harm. The juvenile court ordered the children detained pursuant to the petition and ordered the department to refer petitioner and J. for parenting classes, mental health, substance abuse and domestic violence assessments, and random drug testing. The court also ordered biweekly visitation to be supervised by the department. The department placed the children in foster care.
In December 2006, petitioner and J. completed their substance abuse evaluations during which they continued to deny using methamphetamine. J. stated that he used an Indian medication called "Eno" which he concluded must have caused the positive drug test results.
Petitioner and J. completed second substance abuse evaluations in March 2007. This time, according to the written report, petitioner admitted unwittingly taking methamphetamine since September 2006. J. was giving her what she thought was Eno to treat stomach pain. She did not know it was methamphetamine until D. tested positive for it at birth. She claimed she had not used the substance since that time. According to the evaluator, petitioner expressed extreme embarrassment and shame surrounding the allegations of drug use and was hiding it from her community which regarded such a problem to be a cultural disgrace. The evaluator concluded petitioner was not experiencing a serious substance abuse addiction and recommended she participate in a less intensive education focused drug treatment program.
During J.s second evaluation, according to the evaluators report, he admitted using methamphetamine five to six times a month. He maintained that he found the substance in his truck and thought it was Eno. He used it in September 2006 and two to three times a month thereafter until November 2006, when he claimed he stopped using it. Despite his claim of abstinence, J. tested positive for methamphetamine in December 2006 and in January and March 2007. J.s method of use (swallowing versus smoking) caused the evaluator to conclude he was using it to stay awake on his long truck drives and that his denial and recent drug use indicated his drug use was escalating. Consequently, the evaluator recommended intensive outpatient treatment that was culturally appropriate.
Despite reports that petitioner admitted using methamphetamine, petitioner denied making such an admission and submitted a written complaint alleging the interpreter fabricated her admission. She also set the jurisdictional portion of her case for trial on the issue of her use of methamphetamine. In the interim, she enrolled in outpatient drug treatment and tested negative on random drug tests.
The contested jurisdictional hearing was conducted in April 2007 and resulted in the juvenile court adjudging the children dependents. The court also set the dispositional hearing for May 2007.
In its dispositional report, the department recommended the court provide petitioner and J. reunification services. The department reported it was having difficulty locating a Punjabi interpreter who was willing to work with petitioner. The department finally located court interpreter Mr. H. R. who was willing to work with petitioner in her substance abuse classes.
The department also reported that petitioner completed a parenting program and was in the process of locating a therapist. She was regularly attending substance abuse counseling and testing negative for drugs but continued to deny drug use and minimally participated in the counseling sessions. J., on the other hand, had not completed a mental health assessment, was not participating in parenting classes or substance abuse treatment and, for the most part, was not drug testing.
In May 2007, the juvenile court conducted the dispositional hearing and incorporated the services already being provided into a court-ordered family reunification plan for both parents. The court also ordered supervised visitation for both parents but gave the department discretion to arrange unsupervised visitation between petitioner and the children. The court set the six-month review hearing for September 2007.
In June 2007, the juvenile court issued a temporary restraining order protecting a mental health therapist and two departmental social workers after J. told the therapist during his mental health evaluation that if he did not get his children back, he would blow himself up in front of two of the departments social workers, which he identified by name. According to the therapist, J. made this threat in different ways three or four times and appeared angry and agitated during the entire evaluation. J. also stated that he had lost his job, was homeless, and cut off from his cultural community. On the evening of the day J. made those statements, he and two other men were arrested for possession of narcotics after the police seized what they believed to be methamphetamine and rock cocaine. In July 2007, the court issued a two-year restraining order.
In August 2007, petitioners therapist (hereafter the therapist) recommended the department grant petitioner unsupervised visitation. In a letter, the therapist stated that petitioner was adamant that J. was no longer living with her and that petitioner realized that J.s conduct was jeopardizing her ability to reunite with her children. Consequently, she moved from their apartment to get away from J. and requested separate visitation so as not to have contact with him. The therapist opined petitioner understood her parental responsibilities and could protect the children from J.
At a post-dispositional hearing conducted in August 2007, the juvenile court ordered unsupervised visitation with petitioner and granted the department discretion to arrange liberal visitation. The court also ordered J. to submit to a hair follicle test.
The September 2007 review hearing was continued twice and scheduled for late October 2007. Meanwhile, the district attorneys (D. A.) office was called in to investigate after petitioners former apartment manager (hereafter the manager) revealed that the young girl J. previously identified as his young cousin "S." was petitioners eight-year-old daughter who petitioner was hiding from the department. The manager stated she allowed petitioner to live with her for several months so petitioner could have unsupervised visitation with G. and N. However, petitioner would disappear late in the evenings and some of the tenants reported seeing petitioner and the children get into a car with a bearded man. The manager suspected petitioner was still seeing J. She also stated petitioner was renting a place in the country from Mr. H. R., the court interpreter, which she believed to be a conflict of interest. She regretted not informing the social worker sooner because, even though she believed petitioner was capable of abstaining from drugs, she was concerned about the safety of the children and petitioners dishonesty. She stated petitioner seldom watched the children, which resulted in them injuring themselves. She described one such occasion when a loaf of bread was on the stove and G. turned on all the electric burners. Petitioner was on the patio talking to J. and not paying attention. When the manager alerted petitioner to the danger, petitioner was not concerned and said she would clean up the mess. The manager also stated she was uncomfortable around J. who told her once after a court hearing that he would kill everyone and himself if his children were taken away from him.
The D. A.s investigators located petitioner and S. at the home she was renting from Mr. H. R. For more than two hours S. denied that petitioner was her mother. Finally, she admitted petitioner was her mother and that petitioner told her she would be taken away if she were found. She stated she slept in a bedroom with petitioner and J. and that he left early in the morning. The department was contacted but did not take S. into protective custody at that time.
As a result of several hearings in October 2007, the juvenile court ordered supervised visitation between petitioner and the children, declared J. to be S.s presumed father, and ordered S. detained.
In January 2008, the juvenile court conducted a contested six-month review hearing on the departments recommendation to terminate reunification services for petitioner and J. By the time of the hearing, J. had completed nearly six months of drug treatment and a parenting program. However, he was not consistently drug testing and, in September 2007, he tested positive for amphetamines. Petitioner, on the other hand, had completed her court-ordered services but, in the departments opinion, failed to demonstrate her ability to provide for and protect the children.
Petitioners position at the contested hearing was that she made substantive progress in her court-ordered services and that there was a substantial probability G. and D. could be returned to her custody with continued services. To that end, she called the manager who testified she was able to observe petitioners comings and goings and had not seen J. in the neighborhood nor did she have any reason to suspect petitioner was meeting him. In addition, she observed petitioner to be more independent. Instead of relying on others for transportation, petitioner took the bus to attend medical appointments and to visit the children. In the managers opinion, G. and D. would be safe from J. if returned to petitioners custody.
Petitioner testified she no longer had a relationship with J. She stated she had his belongings removed from the apartment and asked for separate visitation a week before the six-month review hearing.
The therapist and the case worker both testified of their concern that petitioner would allow the children contact with J. The therapist further testified she did not believe the children could be safely returned to petitioners custody by the 12-month review hearing. In her opinion, petitioners dishonest representation that she was not having contact with J. placed in question their entire therapeutic contact.
Following argument, the court found it would be detrimental to return the children to petitioner and J.s custody. The court further found petitioner and J. were provided reasonable services but that petitioner made moderate progress and J. made minimal progress. Finally, the court found both parents failed to regularly participate and make substantive progress in their case plans and there was not a substantial probability either G. or D. could be returned to either parent. Accordingly, the court terminated reunification services as to both parents and set a section 366.26 hearing. The court also reduced visitation to once a week for both parents, ordered a bonding study to include both petitioner and J. with the children, and continued the dispositional hearing as to S.
Petitioner filed a writ petition and appeared through counsel for oral argument.
DISCUSSION
Rule 8.452 specifies, inter alia, that the writ petition must include a summary of the significant facts and identify contested legal points with citation to legal authority and argument. (Rule 8 .452(b).) At a minimum, the writ petition must "adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues." (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.)
The writ petition before this court is devoid of any assertion of juvenile court error, which petitioners attorney conceded at oral argument. Nevertheless, he argued reunification services were inadequate and asked to file a post-argument briefing letter. Having heard nothing during oral argument that would warrant granting relief, this court denied the request to file post-argument briefing and ordered the matter submitted. Further, having concluded the petition is facially inadequate, we will order it dismissed.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.