Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge, Super. Ct. No. JD120909-00
James V. Sorena, for Petitioner.
No appearance for Respondent.
Office of the County Counsel, County of Kern, for Real Party in Interest.
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son L.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In June 2009, at a dispositional hearing, the juvenile court exercised its dependency jurisdiction over then five-month-old L. because petitioner and L.’s mother, Cindy, continued to use methamphetamine despite having received voluntary family maintenance services. Petitioner and Cindy appeared at the hearing represented by counsel and the court ordered them to participate In reunification services. Petitioner’s reunification plan required him to participate in counseling for parenting, child neglect and substance abuse and submit to random drug testing. The court also ordered weekly supervised visitation. In addition, the court advised petitioner and Cindy they had six months to reunify with L. because he was under the age of three years when initially detained and set the six-month review hearing for December 2009. The social services department (department) placed L. with relatives.
Over the course of the ensuing six months, petitioner’s caseworker attempted to contact him in person with no success. She also sent him letters regarding his case plan. It was not until she conducted a due diligence search in December 2009 that she discovered he had been in and out of jail and in October 2009 was sentenced to two years in prison for violating his probation in September 2009. Prior to his incarceration, he did not enroll in any of his court-ordered services or ask to visit L.
Upon learning that petitioner was incarcerated, the caseworker spoke to an officer at the detention facility to determine if petitioner participated in any counseling programs or classes while there. The officer could not find any record that he had. The caseworker made the same inquiry of prison officials by leaving a telephone message but did not receive a return telephone call.
In its six-month status report, the department recommended the juvenile court terminate petitioner and Cindy’s reunification services and set a section 366.26 hearing to implement a permanent plan because neither sufficiently availed themselves of the services provided or made sufficient progress to warrant L.’s return. Nor did the department believe there was a substantial probability L. could be returned to their custody after another six months of services.
In December 2009, the juvenile court conducted an uncontested six-month review hearing. Petitioner waived his appearance at the hearing and his attorney objected to the department’s recommendations but offered no evidence. The court adopted the department’s recommended findings, including that the department provided petitioner and Cindy reasonable services. The court also terminated reunification services as to both parents and set a section 366.26 hearing. This petition ensued.
Cindy did not file a writ petition.
DISCUSSION
Petitioner contends he attempted to enroll in parenting and substance abuse counseling while in county jail but was denied. He further contends he is able to receive services in prison and claims the department never arranged visitation for him at the prison.
A lower court’s judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3rd 557, 564.) Consequently, an “appellant must affirmatively demonstrate error by an adequate record.” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) To the extent petitioner challenges the juvenile court’s finding that he did not participate in services or claims the department was unreasonable in not arranging visitation, he fails to show error.
Where, as here, the child was under the age of three years at the time of the initial removal, the juvenile court may terminate reunification services at the six-month review hearing and set a section 366.26 hearing if the court finds by clear and convincing evidence that the parent failed to regularly participate and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) If, however, the court finds the parent was not provided reasonable services or that there is a substantial probability the child could be returned to parental custody within six months, the court must continue services to the 12-month review hearing. (Ibid.) In order to find a substantial probability of return exists, the court must find the parent made significant progress in resolving the problem prompting the child’s removal and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection and well-being. (§ 366.21, subd. (g)(1).)
According to the appellate record, the caseworker made every effort to communicate with petitioner and arrange for services. However, she could not locate him until the six-month reunification period lapsed. For his part, petitioner made no attempt to contact the caseworker and was incarcerated for most of that six-month period. Consequently, he cannot now complain that the caseworker did not make reasonable efforts to assist him in complying with his case plan requirements. Nor does he show the caseworker was unreasonable in not transporting L. to visit him in prison given the fact she did not know where he was.
Further, the evidence before the juvenile court was that petitioner had not enrolled in any of his court-ordered services. Under those circumstances, the court had no choice but to find petitioner failed to participate in and make substantive progress in his court-ordered plan. The fact that petitioner may have attempted to enroll in services once he was incarcerated does not undermine the court’s finding. Even if the court possessed that evidence, it does not explain why petitioner did not enroll in services when he was out-of-custody and why he engaged in criminal activity rather than seek to reunify with his son.
Finally, given petitioner’s lengthy sentence, there was not a substantial probability L. could be returned to petitioner’s custody after another six months of services. Consequently, the juvenile court properly terminated petitioner’s reunification services and set a section 366.26 hearing to implement a permanent plan. We therefore deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.