Opinion
F075228
05-19-2017
MICHAEL G., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Michael G., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ300042-1)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge. Michael G., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Gomes, J. and Detjen, J.
-ooOoo-
Michael G., in propria persona, seeks extraordinary writ relief from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing as to his now 15-month-old daughter, Z.S. He contends the juvenile court erred in denying him reunification services. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
These dependency proceedings were initiated in February 2016, when newborn Z.S. and her mother, F.S. (mother), tested positive for methamphetamine. Mother was married to Clinton S. but they had been separated for a year and a half and were in the process of divorcing. Mother identified Michael as Z.S.'s father.
The Fresno County Department of Social Services (department) took Z.S. into protective custody and filed a dependency petition on her behalf, alleging mother's methamphetamine use placed Z.S. at a substantial risk of harm. (§ 300, subd. (b)(1).) The petition identified Clinton as Z.S.'s presumed father and Michael as her alleged father.
At the initial hearing, the juvenile court found the department established a prima facie case for jurisdiction and ordered the temporary removal of Z.S. from mother pending disposition or further order of the court. The juvenile court set the matter for a combined hearing on jurisdiction and disposition to be conducted in March 2016.
In its report for the combined hearing, the department recommended the juvenile court provide mother family reunification services but deny them to Clinton and Michael under sections 361.2 and 361.5, subdivision (a), respectively.
Section 361.2 requires the juvenile court to consider placing a child with a noncustodial parent and providing the parent reunification services provided the parent is interested in placement. (§ 361.2, subds. (a) & (b).) The juvenile court denied Clinton reunification services under this statute because he did not desire placement of Z.S. Section 361.5, subdivision (a) requires the juvenile court to provide reunification services to a statutorily presumed father and allows the court to provide services to a biological father if the court determines that services will benefit the child. The statute does not however authorize the court to provide services to an alleged father.
In March 2016, the juvenile court exercised its dependency jurisdiction over Z.S., ordered reunification services for mother and denied Clinton and Michael reunification services as recommended. The court set the six-month review hearing for September 2016. The department placed Z.S. in foster care.
Sometime in March 2016, Michael was incarcerated in Utah. He was in custody for over three months during which he was transferred to Fresno County jail. Upon his release in July 2016, he requested paternity testing. He stated he did not want Z.S. placed with him but wanted to visit her and develop a relationship with her if she was his daughter.
In August 2016, the department placed Z.S. on an extended visit with mother. Also, during that month, mother and Michael informed the department they were in a relationship and wanted to eventually be a family. Social workers explained to them their options if Michael wanted to be elevated to presumed father, including completing a declaration of paternity. Michael declined presumed father status, stating he only wanted visitation.
Over the next several months, the police responded to multiple instances of domestic violence between Michael and mother. On September 4, 2016, officers responded to a report of a female screaming and being drug back into a house. Mother denied there was a problem and reluctantly let the police into her home. They found Michael in the bathroom. He and mother stated they had been in a verbal argument only. On September 13, 2016, mother called the police, reporting that Michael struck her. She then called again, stating she had lied. She also told the responding officer that she lied. On September 29, 2016, mother called 911. The phone call was terminated but the dispatchers said they could hear what sounded like a female screaming in the background. Mother told the officer that Michael held a knife on her and threatened her. The officer noticed a broken front window and fresh blood on Michael's hands. Michael said he broke the window by accident when he slapped it. He said he was there to visit Z.S. Mother denied that they had engaged in a physical altercation. The officer documented the incident but did not make any arrests.
On October 1, 2016, police responded to a domestic disturbance at mother's residence. Michael was holding Z.S. and he and mother were arguing. Mother said Michael had been driving by her house frequently at night and coming over uninvited, causing disturbances. She said he previously broke her window and entered her home wielding a kitchen knife. He pointed the knife toward his abdomen and threatened to stab himself. The police turned Z.S. over to mother and determined the disturbance was verbal only. However, they forwarded a copy of their report to Michael's parole officer.
On October 3, 2016, Michael was arrested for making criminal threats and violating parole after mother reported he had threatened to kill her. A superior court judge issued an emergency protective order protecting her from Michael.
In late October 2016, the department removed Z.S. from mother's care and filed a modification petition (§ 388, subd. (a)(1)), asking the juvenile court to order supervised visitation for mother and Michael and order them to visit Z.S. separately. The department cited the multiple instances of domestic violence while mother had Z.S. in her care on extended visitation.
On November 2, 2016, mother informed the department she was no longer participating in her reunification services. After Z.S. was removed from her custody, she fell into a depression, relapsed and stopped participating in her services. She also moved to another city.
In November 2016, the juvenile court elevated Michael to biological father status and ordered the department to assess Michael for reunification services and report on the active criminal status of both parents. The court set a combined contested hearing to review Z.S.'s status at six and 12 months and to adjudicate the department's section 388 petition.
In addendum reports for the hearing, the department recommended the juvenile court terminate mother's reunification services, citing her ongoing domestic violence with Michael, refusal to complete her services and unresolved criminal charges. The department also recommended against providing Michael reunification services, citing his lack of a significant relationship with Z.S. and the ongoing domestic violence. The department also reported that Z.S. was placed with mentors who were willing to adopt her if reunification failed.
The juvenile court conducted the combined, contested hearing in March 2017. Michael testified Z.S. would benefit from reunification services because it would allow her to have him, her biological father, in her life. He understood her in ways her mentors could not and would give her his all. He said he was on parole for a 2013 robbery until January 2018. While incarcerated, he participated in Celebrate Recovery and learned that he was in denial and needed to admit his past mistakes. He believed he had done that and was able to move forward in his sobriety. He was also looking for employment and was waiting for a bed at an inpatient drug treatment program. Meanwhile, he had an appointment at an outpatient treatment facility the next day and attended Narcotics Anonymous meetings twice a week. He looked into batterer's treatment and anger management classes but did not have the money to pay for the classes. If the court provided him reunification services, he would commit himself "one hundred percent." If he reunified with Z.S., he would have the support of his family.
The juvenile court terminated mother's reunification services and found it would not serve Z.S.'s best interest to provide Michael reunification services and set a section 366.26 hearing to be heard June 14, 2017. The court denied the department's section 388 petition as moot.
Mother did not file a writ petition.
DISCUSSION
Michael contends the juvenile court's order denying him reunification services as Z.S.'s biological father is "unfair." He seeks writ relief in the form of an order from this court directing the juvenile court to provide him reunification services. We conclude extraordinary relief is not warranted.
Section 361.5, subdivision (a) governs the provision of reunification services based on paternity. It provides as relevant here: "[W]henever a child is removed from a parent's ... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's ... statutorily presumed father .... Upon a finding and declaration of paternity by the juvenile court ... the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child." (§ 361.5, subd. (a).) The "statute makes reunification services mandatory for presumed fathers but discretionary for biological fathers." (In re Raphael P. (2002) 97 Cal.App.4th 716, 725, fn. 7.)
Real party in interest contends the juvenile court's reconsideration of reunification services subsequent to disposition was "procedurally, a consideration governed by section 388" and its ruling should be reviewed as a denial of reunification services under section 388. We disagree. A petition under section 388 is brought by a "parent or other person" having an interest in a child to the court. It is not initiated by the juvenile court. Instead, what the juvenile court did was perfectly within its purview; the court ordered the department to assess Michael for reunification services under section 361.5, subdivision (a)(1) in recognition of paternity testing that elevated his paternity status from alleged to biological father. --------
Michael reiterates the position he took at the setting hearing; i.e., that he has learned from his mistakes and will devote himself to being a good father to his daughter if given the chance. At the same time, he acknowledges that he was incarcerated for more than half of her life. Nevertheless, he wants a "special bond" with Z.S. He wants to raise her, watch her grow and "experience the loveliness of being a dad."
The problem with Michael's position is that it supports how reunification would benefit him, not how it would benefit Z.S. Further, Michael had an opportunity to elevate his paternity status to presumed father and assert his right to reunification services under the statute. However, he declined to pursue presumed father status. Moreover, there was no evidence reunification with Michael would benefit Z.S. Z.S. was doing well in her mentor placement and Michael and mother continued to engage in domestic violence and criminal conduct. Consequently, substantial evidence supports the juvenile court's denial of reunification services to Michael under section 361.5, subdivision (a)(1) and its order setting a section 366.26 hearing. We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.