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Larry M. v. Superior Court of San Diego Cnty.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D060483 (Cal. Ct. App. Jan. 3, 2012)

Opinion

D060483

01-03-2012

LARRY M. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. NJ14207)

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Michael Imhoff, Commissioner. Petition denied. Request for stay denied.

Larry M. and N.C. contend the juvenile court erred when it set a hearing to select and implement a permanency plan under Welfare and Institutions Code section 366.26 for their son, J.M. The parents contend the evidence is insufficient to support the juvenile court's finding it would be detrimental to J.M. to return him to Larry's custody. They also assert the juvenile court abused its discretion when it denied N.C.'s request to continue her family reunification services to the 24-month review date. We deny the petition.

Statutory references are to the Welfare and Institutions Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2009 the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), on behalf of newborn J.M. after he tested positive for amphetamine/methamphetamine. N.C. also tested positive for methamphetamine. During a child welfare check at the family's home, Larry was arrested on charges of possession, and possession for sale, of a controlled substance (methamphetamine).

Larry denied drug use. In 1993, 1994, 2000, 2001, 2008 and 2009, he was arrested and charged with possession and sale of drugs. He was convicted of three drug-related felonies in 1994 and one in 2002.

N.C. had an 11-year substance abuse history. She said she did not see her drug use as a problem. N.C. was convicted as an accomplice to robbery when she was 21 years old. She served two and one-half years in prison, and three years on parole. During that time, she completed two substance abuse treatment programs. In 2007 N.C. was convicted of robbery. In 2008 she was convicted on charges of grand theft and sentenced to 16 months in prison. N.C. was then on parole. She had a history of domestic violence as an aggressor in her relationships with Larry and others. In February 2010 N.C. assaulted Larry, slapping and punching him on his arms, chest and stomach.

In March 2010 the juvenile court sustained the allegations of the dependency petition, removed J.M. from parental custody and ordered a plan of family reunification services for each parent. J.M. was placed in the care of a paternal cousin. The parents attended all possible visits with J.M. and responded appropriately to his needs. They were affectionate with him.

N.C. was unable to maintain her sobriety and continued to test positive for methamphetamine. She was noncompliant with various substance abuse treatment programs. She vandalized Larry's apartment in March 2010, injured him in April, and had an altercation with a family member in May. In June N.C. hit Larry with a clothes hangar. She burglarized his apartment in July. In October N.C. was arrested on parole violations. She was incarcerated until January 11, 2011, and was required to enter a substance abuse treatment program as a condition of parole.

Larry did not test positive for drugs. Despite N.C.'s continued drug use and volatility, Larry chose to remain in the relationship with her rather than focusing on reunifying with J.M.

At the six-month review hearing on January 14, 2011, the juvenile court found that N.C. had not made substantive progress with her case plan. The court found the Agency had not provided reasonable services to Larry, who had not received domestic violence counseling for victims, and granted six more months of reunification services. N.C. and Larry were married on January 17, 2011.

On January 20 Larry pleaded guilty to knowingly possessing methamphetamine for sale while having a prior conviction for drug sales. He agreed to a sentence of four years four months, and delayed the sentencing hearing until after the 18-month review hearing at issue here.

In May the social worker learned N.C. was four months pregnant. N.C. was again arrested for parole violations. She was required to enroll in a residential substance abuse treatment program. N.C. was unable to enroll in the program because she tested positive for methamphetamine and opiates at intake. N.C. denied using drugs and said she only had contact with methamphetamine. On June 7 N.C. tested positive for methamphetamine and benzodiazepam.

Larry focused his efforts on supporting N.C. and helping her to regain custody of J.M. He knew she was not compliant with substance abuse treatment. The Agency advised him to separate from N.C. Larry's therapist, JoAnn Wilder, said Larry's understanding of the negative effects of substance abuse of parents and their children appeared to be academic. He was not able to set appropriate boundaries with N.C., who was struggling with long-term drug addiction and emotional problems.

The contested 18-month review hearing was held on August 26, and September 6 and 8, 2011. The juvenile court admitted the Agency's reports into evidence, and heard testimony from social worker Ann Horiuchi-Lopez, Judith Rochelle, N.C.'s therapist, and JoAnn Wilder, Larry's therapist. Larry testified on his own behalf.

Due to the delayed six-month review hearing, the juvenile court did not hold a 12-month review hearing.
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The Agency reported that N.C. reenrolled in family reunification services in mid-June 2011. According to her service providers, she was making good progress. Larry provided financial assistance to help his relative with J.M.'s expenses. The social worker said Larry definitely had a bond with J.M.

Judith Rochelle, a licensed marriage and family therapist, said N.C. was making a good start toward reunification. N.C. had been clean for approximately two months. Rochelle said it was "absolutely [too] early" to determine whether N.C. could maintain her sobriety.

Larry said he did not separate from N.C. because she was pregnant and it was his responsibility as a husband to take care of his wife. He helped her with transportation and housing, and helped her enroll in programs. He said he provided financial support to J.M. for clothing, day-care expenses, transportation expenses and food.

Wilder said Larry took full responsibility for his illegal actions and expressed remorse for the negative impact of his crimes on his children. His attitude was positive and cooperative. He was sincerely trying to address relationship problems with his wife. Larry made arrangements with family members to provide temporary housing for N.C. and their children until he completed his prison sentence.

The juvenile court said it could not criticize Larry for supporting his wife during her pregnancy. However, Larry's ability to provide a safe, stable home for J.M. was limited by the circumstances, including his pending incarceration and N.C.'s struggles with drug addiction. The court found it would be detrimental to J.M. to return him to Larry's custody and denied N.C.'s request to continue reunification services to the 24-month review date. The court terminated family reunification services and set a section 366.26 hearing.

N.C. and Larry petition for review of the court's orders and request a stay of the section 366.26 hearing. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) They ask this court to vacate the order setting a section 366.26 hearing and order the juvenile court to return J.M. to Larry's custody or, alternatively, to extend family reunification services for an additional period. This court issued an order to show cause and the Agency responded. The parties waived oral argument.

DISCUSSION


A


Legal Principles and Standard of Review

At the 18-month review hearing, the court must return the child to the physical custody of his or her parent unless the Agency proves, by a preponderance of the evidence, that return to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child (detriment finding). (§ 366.22, subd. (a); see In re Marilyn H. (1993) 5 Cal.4th 295, 308; In re Jasmon O. (1994) 8 Cal.4th 398, 420.) The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental to the child. (§ 366.22, subd. (a).)

If the child is not returned to parental custody at the 18-month review hearing, court-ordered reunification services may be extended up to 24 months if the court determines by clear and convincing evidence the best interests of the child would be met by the provision of additional reunification services to a parent who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, or was recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child's return. (§§ 366.22, subd. (b), 361.5, subd. (a)(4).)

The reviewing court must affirm an order setting a section 366.26 hearing if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

B


There Is Substantial Evidence to Support the Juvenile Court's Detriment Finding

Larry contends he made progress with his services, did not have a substance abuse problem and was not a perpetrator of domestic violence. He argues his possible incarceration should not have prevented J.M.'s return to his care because he was able to rely on family members for assistance in caring for J.M.

We are not persuaded by Larry's argument. At a review hearing, the focus is on the child's well-being, rather than on the initial grounds for juvenile court intervention. (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) Although Larry did not appear to have a current substance abuse problem, the juvenile court could consider his criminal history involving the sale of methamphetamine, his plea to knowingly possessing methamphetamine for sale in December 2009, and his pending incarceration, which was expected to be four years four months. This case is not similar to those in which an incarcerated (but nonoffending) parent was capable of arranging for his or her child's care, and dependency court intervention at the jurisdictional or dispositional hearing due to that parent's absence was therefore not required. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077-1078; In re Isayah C. (2004) 118 Cal.App.4th 684, 696-697.)

Here, J.M. had been in out-of-home care for 20 months because of methamphetamine exposure, N.C.'s methamphetamine addiction and Larry's criminal business interests in methamphetamine sales. Although Larry participated in reunification services, the record shows that because of his pending lengthy incarceration he was not able to protect J.M. from N.C., who was in the early stages of treatment for substance abuse and domestic violence, and was not able to provide a safe, stable home to J.M.

Further, even were Larry not to be incarcerated, the record supports a finding it would be detrimental to return J.M. to his care. Wilder said Larry did not understand what it meant to be a nurturing parent to his children. Although he was fully aware of the protective issues and treatment goals, he did not appear to be motivated to protect J.M. from the emotional risk presented by being parented by N.C.; his priority was on his relationship with N.C. Social worker Horiuchi-Lopez said Larry was unable to apply what he had learned through his participation in services to establish appropriate boundaries with N.C. and resolve their problems, which included her substance abuse and the continued risk of domestic violence. We conclude there is substantial evidence to support the finding that returning J.M. to Larry's custody would be detrimental to J.M.'s safety or well-being. (§ 366.22, subd. (a).)

C

Denial of N.C.'s Request to Extend Her Reunification Services to the 24-Month Date N.C. contends the juvenile court abused its discretion when it did not extend her services to the 24-month review date. She argues she met the requirements for an extension of services under section 366.22, subdivision (b).

To order an extension of services to the 24-month review date, the juvenile court must find that it is in the child's best interests to have the time period extended and there is a substantial probability that the child will be returned to the physical custody of his or her parent, or that reasonable services have not been provided to the parent. To find a substantial probability the child will be safely returned home, the court is required to find that the parent has consistently and regularly contacted and visited with the child, made significant and consistent progress in the prior 18 months in resolving the problems that led to the child's removal from the home, and demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan, or complete a treatment plan postdischarge from incarceration or institutionalization, and to provide for the child's safety, protection, physical and emotional well-being, and special needs. (§ 366.22, subd. (b) (italics added).)

The record shows that N.C. began participating in reunification services in June 2011, approximately 18 months after J.M. was removed from her care. During the previous 18 months, she was unable to maintain her sobriety, engaged in acts of domestic violence and burglary, and did not comply with court-ordered substance abuse treatment. N.C. was incarcerated on parole violations. For several months she was unable to visit J.M., who cried when he was left with her during subsequent visits. According to her therapist, N.C. was in the beginning stages of treatment for a protracted history of methamphetamine abuse. She had done nothing during the first 18 months of the proceedings to demonstrate the capacity and ability to complete the objectives of her substance abuse treatment plan and provide for J.M.'s needs. (§ 366.22, subd. (b).) The juvenile court did not abuse its discretion when it determined that extending the reunification period was not in J.M.'s best interests.

DISPOSITION

The petition is denied. The request for stay is denied.

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MCDONALD, J.
WE CONCUR:

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HUFFMAN, Acting P. J.

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IRION, J.


Summaries of

Larry M. v. Superior Court of San Diego Cnty.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D060483 (Cal. Ct. App. Jan. 3, 2012)
Case details for

Larry M. v. Superior Court of San Diego Cnty.

Case Details

Full title:LARRY M. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 3, 2012

Citations

D060483 (Cal. Ct. App. Jan. 3, 2012)