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Samuel v. Superior Court of Los Angeles County

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B169404 (Cal. Ct. App. Nov. 26, 2003)

Opinion

No. B169404.

11-26-2003

SAMUEL L. and LAKEITHA W., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

Samuel L., in pro. per., for Petitioner. Lakeitha W., in pro. per., for Petitioner. No appearance for Respondent. Lloyd W. Pellman, County Counsel and Aleen Torossian, Deputy County Counsel for Real Party in Interest.


By petitions for writ of mandate, father Samuel L. and mother Lakeitha W. challenge juvenile court orders terminating reunification services and setting a permanency planning hearing for their child, Cora L. We find sufficient support in the record to support the courts orders, and deny the requested relief.

FACTUAL AND PROCEDURAL SUMMARY

Twenty-three month-old Cora came to the attention of the Department of Children of Family Services (DCFS) in October 2001 when police responded to a domestic violence call and found her asleep on the living room sofa and no one else present in the home. Drug paraphernalia was found in the house. When mother arrived home 15 minutes later, she was intoxicated and smelled of alcohol.

According to mother, she and Coras father had argued and he struck her in the face. She left to call police from a pay phone, and when she returned home, the police were there, questioning her about leaving Cora alone and about the drug paraphernalia. Mother told the social worker she occasionally smokes marijuana, but denied ever using crack cocaine. She has two older children who have been living with their paternal great aunt since 1992, when mother was incarcerated for armed robbery. Father denied current drug use, but admitted that he has used crack and heroin in the past. He said he had been arrested for domestic violence on multiple occasions, but was never convicted. He denied that he ever hit mother, and stated he did not believe mother had left Cora home alone in the past.

Cora was declared a dependent child pursuant to Welfare and Institutions Code section 300 in January 2002, based on findings that: mother and father had a history of domestic altercations; mother had a history of alcohol abuse; father left Cora in mothers care knowing mother was under the influence of alcohol; mother left Cora alone without adequate supervision; and mothers history of marijuana and alcohol abuse renders her incapable of providing regular care for the child. Mother was ordered to attend a 26-week program of domestic violence counseling, group counseling with a womans support group, parent education, and drug and alcohol rehabilitation with random testing. Father was ordered to attend 26 weeks of domestic violence counseling and parent education.

Mother and father completed a parenting class and enrolled in a domestic violence program, but mother was discharged from the domestic violence program in May 2002 because she became abusive and verbally threatened the staff. Mother also was discharged from the substance abuse program in May for noncompliance. She was permitted to re-enroll, and drug tested twice at the program. In addition, the courts order required mother to random test in the DCFS drug-testing program, but she had not tested at all. Father continued in the domestic violence program with no absences, and was reported to be doing well. The parents visited Cora several times in June, July and August.

On August 21, 2002, the court terminated reunification services for mother based on her failure to comply with the case plan. Mother did not appeal from the order terminating her reunification services. The court ordered further reunification services for father, with unmonitored visits once DCFS verified that he and mother were not residing together, and on condition that mother and father visit separately and that father not drink alcohol during visits.

On September 16, 2002, mother was arrested for burglary, and was incarcerated. According to her petition for writ of mandate, she expected to be paroled in October 2003.

By October 2002, fathers visits with Cora had been liberalized to include overnights. He had completed the 26-week domestic violence program and parenting classes. DCFS expressed reservations about returning Cora to fathers custody, based on a belief that father was not truthful to DCFS about whether he was residing with mother and its concerns about his alcohol use. DCFS also was concerned about Coras ability to protect herself because she has speech problems and difficulty communicating.

A December 2002 report indicated that in an unannounced visit to fathers home, the social worker found a strong smoky smell, and fathers eyes were "noticeably red." There was little food in the kitchen, and minimal belongings.

According to the social workers report in January 2003, father had been verbally abusive to Coras caretaker on New Years Day, and appeared to be drunk; the caretaker indicated that father was a heavy drinker. DCFS was concerned that father had a drug or alcohol problem, and requested an order that father test for drugs and alcohol. The social worker also reported that father did not have separate furniture or clothing for Cora, so he did not appear ready to have her returned to his home. The court denied fathers request to have Cora returned to him, but ordered additional reunification services for father and continued the case to April for permanency planning.

In the April report, the social worker indicated that when she has visited fathers home, there has been scarce food. Family members reported that he was always begging them for food, and the caretaker reported that Cora always returned hungry from visits with her father. Concerns continued about fathers drinking, about people "constantly coming and going" from fathers apartment, and about fathers nephew living in the apartment.

On June 3, 2003, the date set for the contested permanency planning hearing, father was ordered to drug and alcohol test two times a week for six weeks. Father began testing three days later, and on June 27, 2003, tested positive for cannabinoids (marijuana). Father told the social worker the positive test resulted from his eating a hamburger with sesame seeds. By the time of the contested hearing on August 1, 2003, father had five positive tests for cannabinoids, one positive test for alcohol, and had missed a number of drug tests.

At the hearing, the social worker testified that father stated the positive test results were due to medications he was taking. The social worker called the testing laboratory to ask whether this could be true, but was told by the pharmacologist that the test levels indicated marijuana use, not medication; the test levels also indicated the usage was increasing. Father testified that he had not smoked marijuana in the past five months. He had consumed a beer on July 15 because he was upset about the court order restricting his visits. The court admitted documentation showing father had been hospitalized at the time of one of his missed drug tests. The court refused to admit internet articles father sought to introduce discussing false positives on drug tests based on lack of proper foundation. (Father has attached similar internet articles to his writ petition, but we will not consider them for the same reason.) Fathers attorney informed the court that he had spoken with the director of the drug laboratory, but did not feel it would assist fathers case to subpoena him.

The court found reasonable reunification services had been provided, that father had not complied with the case plan, and that Cora could not be returned to his custody. Reunification services were terminated as to father, and the case was set for a section 366.26 selection and implementation hearing on December 10, 2003. Mother and father both seek relief from this order by petitions for writ of mandate.

DISCUSSION

I

Father repeats the argument he made in the trial court, that his positive drug tests were caused by medication, not marijuana use. The trial court considered this argument at trial and found against father. Where there is substantial evidence to support the courts order, we must affirm. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) Conflicts in the evidence must be resolved in favor of the courts order. (In re Eric B. (1987) 189 Cal.App.3d 996, 1004.)

In this case, the laboratory reports, absence of admissible contradictory evidence, and the courts credibility determinations, provide substantial evidence to support the courts decision to terminate reunification services and set the matter for a permanent plan. Since the date Cora first came to the attention of DCFS, when drug paraphernalia was found in the home, there has been a concern about parents substance abuse. The social worker received repeated reports from Coras caretaker about fathers drinking. Despite this, father was not under an order to drug or alcohol test until the final two months of the case. As soon as he was required to test, he tested positive for marijuana on several dates and for alcohol on one date. These positive tests, so late in the case, confirmed the earlier concerns about fathers substance abuse. On this record, we find substantial evidence to support the courts conclusion that Cora could not be safely returned to fathers custody in the near future. The court did not err in terminating fathers reunification services and setting the matter for a section 366.26 hearing.

II

Mother purports to challenge the courts order terminating her reunification services. She states in her petition for writ of mandate that in the past year she has taken moral recognition therapy, parenting classes, and anger management classes. She also states she has been clean and sober for one year, has attended Alcoholics Anonymous meetings every week, and intends to continue to do so after her release from prison. She asks that she be allowed to reunify with Cora as soon as she is paroled in October 2003.

The order terminating mothers reunification services was made in August 2002, and she did not seek review by a timely appeal. It has now become final, and cannot be challenged in this writ petition, filed more than one year later. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150-1151.) For this reason, we cannot at this time consider mothers recent efforts to comply with the case plan. She can, however, bring this new information to the attention of the juvenile court by a petition for modification pursuant to section 388. If mother chooses to pursue this path, she must do so promptly, so that it can be considered before the court selects a permanent plan for Cora at the section 366.26 hearing set for December 10, 2003.

DISPOSITION

The petitions are denied.

We concur: VOGEL (C.S.), P.J., CURRY, J.

All statutory references are to this code.


Summaries of

Samuel v. Superior Court of Los Angeles County

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B169404 (Cal. Ct. App. Nov. 26, 2003)
Case details for

Samuel v. Superior Court of Los Angeles County

Case Details

Full title:SAMUEL L. and LAKEITHA W., Petitioners, v. THE SUPERIOR COURT OF LOS…

Court:Court of Appeals of California, Second Appellate District, Division Four.

Date published: Nov 26, 2003

Citations

No. B169404 (Cal. Ct. App. Nov. 26, 2003)