Opinion
B231632
08-25-2011
In re VERNON N., a Person Coming Under the Juvenile Court Law. O.N., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
O.N., in pro. per., for Petitioner.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK00637)
ORIGINAL PROCEEDINGS in mandate. Amy M. Pellman, Judge. Petition denied.
O.N., in pro. per., for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Real Party in Interest.
Petitioner O.N. filed a petition for writ of mandate challenging the juvenile court's termination of reunification services as to his son Vernon N. We deny the writ.
FACTUAL AND PROCEDURAL HISTORY
Jurisdictional History
Vernon was born in April 2009 to Linda J. (mother), who is not a party to this proceeding. Mother has a history of drug addiction -- five of her children have been removed from her care and ordered into permanent placements, and her parental rights have been terminated as to three of them. Initially, the Los Angeles County Department of Children and Family Services (DCFS) worked with mother so that she would be able to care for Vernon. However, in May 2009, mother left Vernon with a cousin for three days with no plan to care for him, and later tested positive for cocaine. DCFS detained Vernon and placed him in foster care.
Mother said that petitioner was Vernon's father. DCFS located petitioner in custody (he was charged with assault with a deadly weapon, false imprisonment, terrorist threats and elder abuse). He appeared at the June 18, 2009 hearing where he was declared to be Vernon's presumed father.
In July 2009, petitioner informed the social worker that he did not think mother was using drugs during her pregnancy, and that he was "proud of her" because she was sober. Regarding his incarceration, he stated that he was fighting his case and believed that he would be acquitted of his charges. He also stated that he would like an opportunity to reunify with Vernon. DCFS later recommended that petitioner receive family reunification services and that he be ordered to participate in parenting education and counseling. The matter was set for adjudication for September 10, 2009.
On September 2, 2009, petitioner wrote a letter to the court stating that he wished to keep custodial and parental rights as to Vernon. He stated that he had raised three other children, and never had any allegation against him regarding any of those children. He informed DCFS of a family friend, Lavonna Ingram, who agreed to have Vernon placed in her home. Petitioner further stated that he was currently enrolled in parenting classes, anger management classes, domestic violence classes, and a substance abuse prevention program. He said he stayed in contact with Vernon by sending him a letter once a month, and that he would "do anything" to reunify with his child.
At the September 10, 2009 hearing, DCFS was informed that petitioner had been convicted of elder abuse. The court sustained the Welfare and Institutions Code section 300 petition as to Vernon under subdivision (b), based on mother's chronic history of substance abuse, her abandonment of Vernon with an unrelated person, petitioner's history of violent crimes, and petitioner's current incarceration, leaving him unable to care for Vernon. The court also sustained the petition under section 300, subdivision (j), based on mother's failure to reunify with her other children. The court placed Vernon with Lavonna Ingram. The court ordered no reunification services for mother, but granted petitioner six months of reunification services. Petitioner was ordered to attend anger management counseling, parenting education, and drug awareness counseling. Petitioner was also granted monitored visits with DCFS having discretion to liberalize.
All subsequent statutory references are to Welfare and Institutions Code unless otherwise stated.
The Reunification Period
On January 25, 2010, DCFS learned that petitioner was sentenced to three years in prison. Because the length of his sentence would not leave him with sufficient time to reunify with Vernon, DCFS recommended that reunification services be terminated and a hearing be scheduled to determine legal guardianship or adoption of Vernon by his caretaker, Ingram.
At this time, Vernon was doing well, and was described as a happy and easygoing child. Almost every week petitioner had visits with Vernon and Ingram at the prison, which were monitored by a parenting instructor. Ingram reported that petitioner was very loving and appropriate with Vernon, and that there was an apparent bond between the two. While in prison, petitioner attended all court ordered classes in addition to participating in the Hollywood Impact Program and looked forward to working upon his release. At a January 25, 2010 hearing, the juvenile court extended petitioner's reunification services, finding that petitioner made "significant progress" with his case plan.
At a July 26, 2010 hearing, the juvenile court again continued petitioner's reunification services. Petitioner had completed a domestic violence program, fully complied with court orders, and maintained a positive relationship with Vernon. In a letter submitted to the court, petitioner expressed his intent to be a "fit, responsible, productive" parent to his son.
At petitioner's 18-month hearing, on November 29, 2010, the court learned that petitioner had been released from prison. He was living in an apartment and visiting Vernon at least twice a week for several hours. It was reported there was a visible bond between the father and son, with Vernon recognizing petitioner, calling him "dada." The court continued petitioner's reunification services, gave DCFS discretion to liberalize petitioner's visitation up to and including overnights, and set the permanent plan hearing for contest.
Petitioner's Re-Arrest
Petitioner was granted unmonitored and overnight visits with Vernon in December 2010. On December 13, 2010, petitioner informed a social worker that he had seen mother in a building where he picks up his mail. The social worker reminded petitioner that under no circumstances was he allowed to monitor any visits with mother and that he needed to be careful to not allow anyone to "sabotage all that he has worked for." Petitioner said he understood and told the social worker that he would not allow mother to be present at any visits.
Despite the social worker's warnings, petitioner was arrested on December 26, 2010 for domestic violence involving mother. Police were called to petitioner's residence for a "spousal abuse incident," and upon their arrival, found mother with scratches above her eye and along her neck, along with a 1 1/2 inch bump on her forehead. Mother informed police that while Vernon was present, petitioner grabbed her violently, hit her with his fists, and choked her. According to the police report and statements made by mother at the time of the incident, mother and petitioner were living together. Additionally, the police report indicated that at the time of arrest petitioner was very upset and agitated, threatened harm to one of the arresting officers, and consequently had to be subdued by force. Due to Vernon being present during the incident, the police took him into custody until December 27, 2010 when DCFS placed him back with caregiver Lavonna Ingram.
During a February 1, 2011 hearing, DCFS noted that the petitioner refrained from violence for only two months after being released from prison, and as a result of being unable to follow court orders, recommended that reunification services be terminated and a permanent plan of adoption by Ingram be implemented. At a March 3, 2011 hearing, petitioner's attorney contended that petitioner was in full compliance with his case plan. However, the juvenile court found petitioner to be in partial compliance and unable to provide for his child's safety, protection, physical or emotional well being. In addition, the court found there was not a substantial probability that Vernon would be returned to petitioner's custody within six months, set a hearing under section 366.26 to select and implement a permanent plan, and directed DCFS to initiate an adoptive home study for Ingram. Petitioner's attorney acknowledged that petitioner was unable to provide for Vernon because he was in custody, but stated that if he was released a section 388 petition would be filed.
In April 2011, prior to release from custody, petitioner filed the petition for writ of mandate that is in issue in the present proceeding, challenging termination of reunification services. He requested a temporary stay on the upcoming 366.26 hearing, that reunification services be continued, and that he be granted custody of Vernon. He later supplemented his petition with a letter, highlighting his compliance with the juvenile court's orders, his bond with his child, and his ability to be a fit, responsible parent. He also submitted supplemental argument, and included a letter from a counselor to demonstrate he had completed counseling.
DISCUSSION
Petitioner contends that the juvenile court erred in terminating his reunification services, because he completed his case plan. We disagree.
Section 366.22, subdivision (a) provides in relevant part that "the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." We review the juvenile court's finding of substantial detriment for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Here, after receiving approximately nineteen months of reunification services, petitioner permitted mother back into Vernon's life (despite being ordered by the social worker not to allow mother to be in Vernon's presence), and he failed to provide for Vernon's safety when, only two months after being released from prison, he engaged in a physical altercation with mother while Vernon was present. This evidence demonstrates petitioner had not made significant progress to resolve the issues that initially kept Vernon out of his care. (§ 366.22, subd. (b)(2).) Furthermore, petitioner was again incarcerated at the time of the section 366.22 hearing, making him incapable of providing for Vernon's safety, protection, physical and emotional well being. (§ 366.22, subd. (b)(3).)
Nor did the court err in not extending reunification services any further beyond the general 18-month limit. (See In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067-1068 [in exceptional circumstances appellate courts have permitted reunification services to continue beyond the 18-month statutory period].) No evidence suggested that this is an exceptional case in which additional reunification services would benefit Vernon, given petitioner's recent altercation with mother in Vernon's presence and petitioner's being in custody again and being unable to provide for Vernon.
DISPOSITION
The petition for writ of mandate is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.