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Ray K. v. Superior Court of San Diego County

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 26, 2003
D042920 (Cal. Ct. App. Nov. 26, 2003)

Opinion

D042920.

11-26-2003

RAY K., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.


Ray K. (the father) seeks review of juvenile court orders terminating his reunification services and setting a hearing under Welfare and Institutions Code section 366.26. (All statutory references are to the Welfare and Institutions Code.) He contends no substantial evidence supports the finding that he failed to make substantive progress with the requirements of his reunification plan and the court erred in finding there was no substantial probability of return by the 12-month review hearing. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Michelle A. (the mother) gave birth to September A. at home in September 2002. She had no prenatal care and had a long history of referrals to Child Protective Services with her other children. She said she brought September to the hospital because September was cold. She indicated she was hearing voices. The father said he helped the mother with her medications, but he was not sure what she was taking.

On October 3, 2002, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on Septembers behalf, alleging the mother abused methamphetamine, used methamphetamine during her pregnancy, had no prenatal care, and Septembers half-sibling had tested positive for amphetamine at birth. The petition also alleged the mother was experiencing hallucinations at the time of Septembers birth. At the detention hearing the court detained September and ordered liberal, supervised visitation.

The father said he managed the household, including his teenage daughter and the mothers two younger children. He said he could not safely leave the mother for long because she might do something dangerous. The social worker reported she could not interview the mother because she was almost catatonic.

The father requested paternity testing. He said the mother was not taking her medicine because they had been too busy to get it. The foster mother reported the parents were not visiting September.

On November 25, 2002, the parents appeared and submitted to the allegations of the petition. A guardian ad litem was appointed for the mother. On January 2, 2003, the court found the father was Septembers biological father.

In the January 9, 2003 report, the social worker reported that after some delay, the mother had appeared for a psychological evaluation as ordered by the court, but she was so ill the evaluator could not complete the evaluation. The mother did not know the day or time or her age. She missed a second appointment because one of the children was bitten by one of the dogs living on the parents property. The social worker visited the home and reported garbage and beer cans were all over the yard and in a broken down bus and abandoned truck on the property. The social worker reported although the parents had the foster mothers telephone number, they had not called to schedule a visit. The social worker arranged a visit for January 28. The parents were appropriate with September and enjoyed the visit. The father said he had made certain the mother took her medicine that day.

A psychologist who evaluated the mother stated it was unlikely she would benefit from services, but suggested she enroll in a treatment program for substance abuse and psychological problems. The fathers evaluator opined the father had a heart of gold and good intentions, but could not handle a young baby in addition to his other responsibilities and emotional needs and he could not protect her from the mother. The parents agreed they could benefit from parenting classes. The father denied having an alcohol problem, but agreed to attend Al-Anon by himself or AA or NA with the mother to show his support of her and because he drinks alcohol. The other children reported no problems in the home and said they liked the father. Their teacher said the father was tender hearted, but sometimes came to school smelling of alcohol and sometimes screamed and cursed at the children. The social worker opined that although the father was able to maintain minimal standards in the home for the older children, he would not be able to care for an infant. She recommended September be placed out of the home while the parents participated in services.

At the disposition hearing on February 11, 2003, the court declared September a dependent child and ordered the parents to comply with their case plans.

In a status review report prepared for the June 3, 2003 hearing, the social worker recommended terminating services. She reported the parents had not complied with their reunification plans. She said the parents continued to live together and the father tried to get the mother to take her medication. He had completed a psychological evaluation, but had not attended a parenting class, or AA meetings. She also noted he had not attended domestic violence treatment. The reunification plan, however, required this treatment only if there was fighting between the parents and there was no report of any fighting. The psychological evaluator opined the father would not be able to place Septembers needs above those of the mother. He was loving and appropriate during visits, but had attended only five of eleven scheduled visits.

At the six-month review hearing on September 10, the social worker testified she had provided referrals and urged the parents to participate in services. She said at that time the father had attended a total of 10 visits. She reported he said he did not read the letters she sent him about services in his plan because he did not read his mail. After argument, the court found the parents had not made substantive progress with their case plans and there was no substantial probability September could be returned by the 12-month date. It terminated services and set a section 366.26 hearing.

The father petitions for review of the courts orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

The father contends the court erred in finding he had not made substantive progress with the provisions of his case plan. He argues he completed a psychological evaluation and visited September 10 times. He asserts his progress is sufficient to show a likelihood that September could be returned to him by the 12-month date.

A reviewing court must uphold a juvenile courts findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also . . . view the record in the light most favorable to the orders of the juvenile court. " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Under section 366.21, subdivision (e), at the six-month review hearing for a child who was under the age of three when removed from his or her parents, the court may terminate services and set a section 366.26 hearing if the parent has not participated regularly or made substantive progress in treatment. Here, substantial evidence supports the finding the father had not regularly participated in services or made substantive progress. He did not attend parenting classes or 12-step meetings as required, nor did he visit September on a regular basis. He continued to live with the mother and was often unsuccessful in having her take her medication. His argument his problems with transportation prevented him from making more progress is not supported. The social worker provided bus tokens when his car was not working and she verified that bus transportation was available from his home. Importantly, the father visited September only 10 times during a period of nearly a year. Although he was appropriate and loving when he did visit, because of his lack of progress in services, he never progressed to unsupervised visits. His psychological evaluator opined that visits should stay supervised unless the fathers situation changed. Because of his lack of progress he could not show a change. Substantial evidence supports the finding he did not make substantive progress with his case plan.

The finding there was no substantial probability of return by the 12-month date is also well supported because the father had visited only 10 times during Septembers lifetime, he continued to live with the mother and attempted to help her with her medication and there was no indication he could put Septembers needs above those of the mother. He did not attend parenting classes or a 12-step program to deal with substance abuse issues and he made no showing it was likely that September could be returned home with six more months of services. The father has not shown the findings were not supported by substantial evidence.

DISPOSITION

The petition is denied.

We Concur: McCONNELL, P. J., HUFFMAN, J.


Summaries of

Ray K. v. Superior Court of San Diego County

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 26, 2003
D042920 (Cal. Ct. App. Nov. 26, 2003)
Case details for

Ray K. v. Superior Court of San Diego County

Case Details

Full title:RAY K., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 26, 2003

Citations

D042920 (Cal. Ct. App. Nov. 26, 2003)