Opinion
F080378
03-17-2020
ZACHARY B., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Zachary B., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV7938)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Kate Powell Segerstrom, Judge. Zachary B., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
Before Poochigian, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Zachary B. (father), in propria persona, seeks an extraordinary writ from the juvenile court's orders issued at a contested 12-month review hearing on December 4, 2019, terminating reunification services and setting a Welfare and Institution Code section 366.26 hearing for March 24, 2020, as to his now 17-month-old son, Zayden B. We conclude father's petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 and dismiss the petition.
Statutory references are to the Welfare and Institutions Code.
Rule references are to the California Rules of Court.
PROCEDURAL AND FACTUAL SUMMARY
Father and J.W. (mother), his girlfriend and the mother of his children, have a history of chronic homelessness and living in unsafe and unsanitary conditions. As a consequence, they also have extensive involvement with child protective services across multiple counties.
Mother did not file a writ petition.
Prior Dependency Proceedings
In May 2014, the Merced County Human Services Agency and Atwater Police Department responded to a report father and mother were drinking alcohol and smoking marijuana and blew the marijuana smoke into the face of their 10-month-old son, S.B. The officer and social worker found the family living in substandard and unsanitary living conditions. The residence was filthy and had a strong stench of cigarette smoke and animal urine and feces. It was infested with cockroaches crawling on the furniture and food. There was debris and dirty clothes strewn throughout and a marijuana bong within S.B.'s reach. The parents denied using marijuana and agreed to drug test and to clean their home. By the following day, they had done neither and S.B. had several insect bites on his arms, face, and chin. He also had a rash on the side of his neck and testicles and was wearing dirty clothes with a strong odor of cigarette smoke and urine. S.B. was taken into protective custody.
Mother admitted using marijuana, alcohol and hallucinogenic mushrooms during the prior six years. She submitted to drug screening by urinalysis and tested positive for marijuana. Father admitted using cocaine, mushrooms, alcohol and marijuana. He also tested positive for marijuana. He reported having several untreated mental health conditions as well as anger management issues.
The Merced County juvenile court declared S.B. a dependent child based on allegations of parental neglect and ordered the parents to participate in parenting education, substance abuse counseling, and drug testing. Father was additionally ordered to participate in mental health services. At the 18-month review hearing in November 2015, the court granted the parents family maintenance services because they had abstained from substance abuse and maintained a clean home. In April 2016, mother gave birth to a daughter, A.B. The county allowed A.B. to remain in her parents' care and opened a concurrent voluntary family maintenance case regarding her. At the 24-month review hearing for S.B., the court found the parents' participation was " 'marginal' " and their home was described as " 'cluttered with various debris, dirty dishes, and cockroaches.' " The court found the parents had not fully participated in their services plan and had done little to change their lifestyle. The court continued family maintenance services and in March 2017, it transferred the case to Tuolumne County where the parents were residing.
In Tuolumne County, the parents were required to participate in random drug testing, individual counseling and parenting education but were not compliant. They cancelled individual counseling sessions at the last minute and only attended a few parenting sessions because the instructor could not get in contact with them. By September 2017, the children's family maintenance cases were closed, and the juvenile court terminated its dependency jurisdiction. At that time, the parents were abstaining from marijuana use and were able to provide an adequate environment for the children. It was noted that, " 'Despite receiving an extensive amount of services, it does not appear that [the parents] would benefit from any further additional services at this time. [The parents'] level of participation in the services continues to be dismal. Despite their poor level of engagement, [the parents] have continued to demonstrate that they are able to meet [S.B.'s] minimum sufficient level of care.' "
Current Dependency Proceedings
In May 2018, Tuolumne County Child Welfare Services (CWS) responded to a law enforcement request for CWS presence at the Walmart parking lot regarding a family who was residing in their car. The officer expressed concern with the state of the living conditions and the children's hygiene. The social worker observed then five-year-old S.B. and two-year-old A.B. with significant dirt on their faces, as well as facial sores and marks that appeared to be bites. The inside of the car was piled with clothing, food and garbage and emitted a strong pungent odor. Mother said she was four months pregnant and father worked at the Walmart. The children were taken into protective custody. The parents were screened for drugs and tested positive for marijuana.
The parents stated they were living with father's parents in September 2017 when their child welfare case was closed. They lived there until March 2018 when they returned to Tuolumne County and stayed in a hotel. They subsequently lived with an aunt for one month and the maternal great grandmother for two weeks before living in their car. According to mother, they abstained from substance use after their case was closed but resumed marijuana use earlier in the year. Mother needed it for morning sickness and father used it for back pain. Father could not identify all his mental health diagnoses, stating " 'I can't list them all,' " but mother said he had bipolar disorder, intermittent explosive disorder, depression, anxiety and paranoia.
During a meeting in July 2018 the parents told the social worker they planned to ask the paternal aunt to assume temporary legal guardianship of the baby or allow mother and the baby to live with her. The social worker informed the parents she was going to request psychological evaluations for them to assess their parenting abilities and determine whether they could benefit from services. She gave them contact information for mental health services, parenting education classes and substance abuse services. She also gave them a list of low-income housing and suggested they seek emergency shelter at Amador Tuolumne County Action Agency (ATCAA). The parents reported that they had been " 'kicked out forever' " from ATCAA and father did not get along with the owner.
The social worker attempted several times in September 2018 to meet with the parents to discuss care for their unborn child. However, they did not keep the appointments. During a telephone call, however, mother stated the plan to place the baby with the paternal aunt was not a guarantee. She and father were homeless and staying at a friend's house. They had not participated in any services since S.B. and A.B.'s removal.
On September 18, 2018, the Tuolumne County juvenile court sustained allegations of general neglect as to S.B. and A.B. and removed them from parental custody. Three days later, mother gave birth to Zayden. He was taken into protective custody and discharged into the care of his maternal great grandmother in Tuolumne County.
CWS filed a dependency petition on Zayden's behalf, alleging under section 300, subdivision (b)(1) mother smoked marijuana during her pregnancy, which father knew but failed to take protective action. It further alleged Zayden was born with respiratory distress and required oxygen to breathe. Under section 300, subdivision (j), the petition alleged Zayden was at risk of abuse or neglect based on the circumstances which required his siblings' removal in the open and prior dependency cases.
Detention to Disposition
In October 2018, following a contested detention hearing, the juvenile court ordered Zayden detained. At a dispositional hearing on the same day, the court declared S.B. and A.B. dependent children and ordered the parents to participate in family reunification services.
At a combined jurisdictional/dispositional hearing on October 23, 2018, the juvenile court adjudged Zayden a dependent child after the parents submitted the matter of jurisdiction. The court ordered Zayden removed from parental custody and ordered each parent to sign and comply with a family reunification plan. The plan objectives required them to obtain and maintain a stable and suitable residence for the family and refrain from drug use. It also required them to complete a psychological evaluation and a parenting education course and participate in individual mental health therapy and random drug and alcohol testing. The court also ordered three times per week supervised visitation.
The parents were evaluated by psychologists A. Paige Blankenship and Blake Carmichael, who reported their findings in December 2018. Mother was diagnosed with unspecified anxiety disorder and father with posttraumatic stress disorder (PTSD) and bipolar disorder I (moderate) with anxious distress. They were both diagnosed with cannabis use disorder. None of their diagnoses prevented them from safely parenting their children or from benefitting from reunification services. However, Drs. Blankenship and Carmichael believed the parents underestimated what was required of them since S.B. and A.B. were returned to their custody despite minimal engagement and improvement. Consequently, they recommended specific goals to demonstrate they were able to initiate services and maintain participation and progress in treatment. Services should include instruction in living skills such as money management and using public transportation, individual therapy, parenting classes and expanding their social support network. They recommended father complete a psychiatric evaluation to determine if medication would stabilize his mood and reduce his symptoms related to bipolar disorder and PTSD. A physical health evaluation and treatment was also recommended to address the physical ailments he was experiencing and that may interfere with his ability to consistently attend appointments with service providers and fully engage with the children. The psychologists recommended the social workers regularly monitor the parents' attendance and progress at various benchmarks. If they did not initiate services, maintain participation and make progress within two months of setting the treatment goals, it would be an indication they were not benefitting from services and would not make sufficient progress toward becoming protective parents within six to 12 months.
On December 28, 2018, mother's attorney, Dana Gross, filed a modification petition under section 388 requesting court approval to modify the parents' case plans based on the recommendations of Drs. Blankenship and Carmichael. The juvenile court granted the petition and approved an updated case plan that added requirements they complete substance abuse treatment, attend 12-step meetings and meet weekly with a provider to learn independent living skills such as money management, navigating public transportation, preparing healthy meals, seeking and retaining employment and utilizing other support services such as healthcare and housing programs. Mother was additionally required to participate in an impulse control group and father was required to complete a domestic violence program and take psychotropic medication as prescribed.
Sharon Swaffar, LMFT, reviewed the results of mother's psychological evaluation with her during a regularly scheduled counseling session. She stressed the importance of following through with services and demonstrating progress by obtaining employment and providing a safe home for the children. Swaffar provided mother information about the substance use disorder (SUD) program through Tuolumne County Behavioral Health. Father's assigned therapist, Roxana Lemus, ASW, did not review his psychological evaluation with him.
Six-Month Review Hearing
By the six-month review hearing, scheduled for April 2019, the parents were living with a friend in Sonora. They were unemployed but seeking employment. They did not have driver's licenses or a vehicle and opted to rely on friends for transportation rather than use the bus passes provided by CWS. Zayden and his siblings were placed together with their maternal great grandmother who was willing to adopt them if the parents failed to reunify. The parents missed some visits with the children but were interactive, attentive and loving with them during visitation.
CWS remained concerned about the parents' ability to provide a safe and stable home for the children. It recommended the juvenile court retain the children out of parental custody but continue reunification efforts. The parents had only recently begun individual therapy and independent living services. They were testing positive for alcohol, which they attributed to consuming cough medicine, and father tested positive several times for marijuana. Mother was not participating in an impulse control group. She first told the social worker she did not know who to contact. Once given that information, she called but then reported that she did not have the means to pay for the class. She agreed she could pay for the deposit while the social worker inquired about financial options but then did not enroll. Father reported he was medication compliant but had not started attending domestic violence group sessions or participating in substance abuse treatment.
On April 9, 2019, at the six-month review hearing, the juvenile court continued reunification services for Zayden and set the 12-month review hearing for September 24, 2019. The court found CWS provided the parents reasonable reunification services but their progress toward resolving the cause for Zayden's removal was minimal. The court found there was a substantial probability Zayden could be returned to his parents' custody by the 12-month review hearing.
12-Month Review Hearing
Shortly after the hearing in April 2019, the parents' friend forced them to leave the home they were sharing. They began living with another friend in a car until law enforcement was called by the car owner and physically removed them. Over the following four months they moved back and forth between Modesto and Sonora before settling in Modesto with father's parents. They were unemployed and still did not have drivers' licenses or a vehicle.
On August 5, 2019, CWS social workers Lorena Velasco and Kristen Waters met with the parents and provided them a list of services in Stanislaus County and explained what resources could be utilized at each place. Waters explained how important it was for the parents to begin accessing services immediately and discussed specific ways they could show progress in their services. They also encouraged the parents to get verification of any services they participated in.
In September 2019, following a contested 12-month review hearing, the juvenile court terminated the parents' reunification services as to S.B. and A.B. and set a section 366.26 hearing for December 17, 2019.
Mother initiated writ proceedings in case No. F079936 but did not file a writ petition and we dismissed the case. The court, on its own motion, takes judicial notice of the record in case No. F079936, specifically the minute orders dated September 4, 2019. --------
By September 2019, the only component the parents completed of their services plans was the parenting education class. They attended three independent living sessions with Kelsey Stone beginning in March 2019. Stone instructed them in maintaining good hygiene and nutrition and in using public transportation, giving them specific bus route information from their home to their service locations. The parents attended their last session with Stone in early April and made no effort to see her again. Mother attended two sessions and father attended one session of individual therapy in April with their respective counselors. In August, father reported that they tried to apply for counseling and substance abuse services through Stanislaus County Behavioral Health but were told their Medi-Cal was not yet active because they had recently transferred from Tuolumne County. Consequently, neither had participated in substance abuse treatment and they failed to appear when called for drug testing beginning in May. They provided proof of attendance at 12-step meetings in August. Mother had not attended any impulse control groups. Father was evaluated by a psychiatrist in February and prescribed medication. He reported being medication compliant but missed follow-up appointments with the psychiatrist in March and June and he did not reschedule.
In its report for the 12-month review hearing, CWS recommended the juvenile court terminate reunification services and set a section 366.26 hearing. The parents had not made substantive progress and demonstrated the ability to provide Zayden a safe and stable home. Though they verbalized a willingness to attend their services and claimed transportation prevented them from participating, they did not utilize bus passes offered by CWS or accept the social worker's offer to transport them if given prior notice. Given their poor showing, it was unlikely they would take the necessary steps to eliminate the risk to Zayden even if given another six months of services.
The 12-month review hearing was continued and conducted as a contested hearing in November 2019. The contested issue was whether CWS provided the parents reasonable reunification services. The juvenile court accepted into evidence a picture of 12-step cards presented by the parents reflecting their attendance at meetings in September through November 2019 and two positive test results for mother for marijuana from samples collected on October 31 and November 12, 2019.
Mother testified she and father continued to live with his parents in Modesto. Father was employed but she was not. If their current living arrangement did not work out, they could live with father's sister and brother-in-law. They could also stay with her cousin or "dad." The house they were living in was clean and safe and she was building a support network in Stanislaus County. They had been attending two to three Alcoholics Anonymous (AA) meetings each week since September 2019. They used a calendar to remind them of their meetings and appointments. Mother did not have a sponsor but had considered getting one. She was also considering attending Narcotics Anonymous (NA) meetings instead of AA meetings because she was more a marijuana than an alcohol user.
No one from CWS assisted mother or father since the six-month review hearing with housing, transferring their health insurance, obtaining a driver's license, finding a job or accessing any of the services required by their case plans. Mother remembered CWS social workers coming to her house but did not talk to them much because she was showering. Velasco only gave them a list of AA meetings in Stanislaus County but no information about other resources. She had not attended any counseling since she moved to Stanislaus County and used marijuana around Halloween and again afterward. CWS stopped providing them transportation from Stanislaus County three or four weeks before and she and father had missed two to three visits with the children since then.
Father testified he was on step 8 of the 12 steps. He had a sponsor but not an "actual AA given sponsor," explaining that his brother-in-law, who had never had a drinking problem, was acting as his sponsor. He was taking medication for depression and bipolar disorder. He was not in counseling because he could not find a provider that accepted his insurance until recently. He was waiting for a return call from them. He was employed at a store and used a bus pass given to him by CWS for transportation. After moving to Modesto, their visits were reduced from twice to once per week. To get transportation for a visit, they had to give the social worker 72-hour notice. In October 2019, he contacted a CWS social worker on a Tuesday for a Thursday visit and was told transportation other than bus passes was no longer available. CWS gave him and mother a 31-day bus pass for Stanislaus County, which allowed them to get anywhere in the county without having to walk much. The bus passes, however, did not get them from Modesto to Sonora where the children were living. There was a "Greyhound like system" that offered bus routes between the two cities, but the cost was prohibitive for him and CWS was not willing to pay for the bus fare. He said mother may not have been aware of it, but Velasco gave them a list of resource providers in Stanislaus County.
Social worker Waters testified about going to the parents' home with Velasco in August and giving them a list of locations for 12-step meetings and a list of resources for each of their case plan requirements. Around November 11, 2019, she and social worker Houa Xiong returned to check on their progress. The parents said they were attending 12-Step meetings but did not have attendance cards. They later texted pictures of them. Father had an intake appointment for mental health services scheduled with a provider who accepted his insurance but was not participating in domestic violence classes and mother was not participating in impulse control groups.
The case was continued until December 4, 2019, and Waters resumed her testimony. She spoke to the parents in the hallway before the hearing. Mother said she had an intake appointment for mental health services and a job interview. Father was making progress in his medical and mental health plans.
The juvenile court found returning Zayden to his parents' custody would be detrimental because of their failure to participate regularly and make substantive progress in their court-ordered services; namely, mental health counseling, impulse control groups, substance abuse treatment, 12-step programs, and independent living. The court also cited their failure to obtain housing and employment. The court also found the parents were provided reasonable reunification services, including the contact between the social workers and the parents after they moved to Stanislaus County. Addressing the transportation issue, the court stated CWS made substantial efforts before and after the parents moved out of the county to transport them. The social worker personally drove the parents on occasion. In addition, they had bus passes provided by both Tuolumne and Stanislaus counties. The court did not fault CWS for its inability to provide the parents intercounty bus passes but considered it a consequence of the parents' decision to voluntarily leave the county. Finally, the court terminated reunification services after finding there was not a substantial probability Zayden could be returned to their custody after an additional period of reunification services and set the section 366.26 hearing. This petition ensued.
DISCUSSION
Father does not assert that the juvenile court's orders terminating reunification services and setting the section 366.26 hearing are error. Instead, he states in his petition, "We did most of the requirements asked, but became completely homeless. Should we have done as was recommended, we would have ended up a large bit worse than we were." He also states, "One of the biggest things, was the home that we had for the baby. No one ever showed at the house to check it out. There was always someone present."
As a general proposition, a juvenile court's rulings are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) A parent seeking review of the juvenile court's orders from the setting hearing must, as father did here, file an extraordinary writ petition in this court on Judicial Council form JV-825 to initiate writ proceedings. The purpose of such petitions is to allow the appellate court to achieve a substantive and meritorious review of the juvenile court's orders and findings issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26, subd. (l)(4).)
Rule 8.452 sets forth the content requirements for an extraordinary writ petition. It requires the petitioner to identify the error(s) he or she believes the juvenile court made. It also requires the petitioner to support each alleged error with argument, citation to legal authority, and citation to the appellate record. (Rule 8.452(b).) In keeping with rule 8.452(a)(1), we will liberally construe a writ petition in favor of its adequacy where possible, recognizing that a parent representing him or herself is not trained in the law. Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994 (Sade C.).)
Father's petition does not comply with rule 8.452 because he does not specify a finding or order that he claims is error. Consequently, he has not claimed any error or defect against the court's orders and findings that merit our review. Further, we do not independently review the appellate record for possible errors. (Sade C., supra, 13 Cal.4th 952, 994.) Even if we were to review the critical findings and orders the juvenile court is required to make at the 12-month review hearing, we would conclude substantial evidence supports them.
At the 12-month review hearing, the juvenile court must order the return of the child to the physical custody of his or her parent unless it finds the return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (f)(1).) If the court does not return the child, it may continue the case for up to six months if there is a substantial probability the child will be returned to parental custody within 18 months from the time the child was initially removed. (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the court must find the parent regularly visited the child, 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)(A)-(C).) Otherwise, the court must terminate reunification services and set a section 366.26 hearing to implement a permanent plan for the child. (§ 366.21, subd. (g)(4).) Before the court may terminate services and set a section 366.26 hearing, however, there must be clear and convincing evidence the department provided reasonable services to the parent. (§§ 361.5, subd. (a), 366.21, subd. (g)(4).)
Since father and mother are an intact couple, the juvenile court's findings and orders as to father must be considered as to both parents. The court found they failed to regularly participate and make substantive progress in important aspects of their court-ordered services; namely, mental health counseling, substance abuse and independent living. Failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence of detriment and thus supports the court's decision not to return Zayden to father's custody. (§ 366.21, subd. (f)(1)(B).) The parents' failure to make significant progress also supported the court's finding there was not a substantial probability Zayden could be returned to them even with additional time to reunify. Drs. Blankenship and Carmichael opined their failure to comply with specific case plan requirements and make progress would reflect the likelihood they would be able to reunify with Zayden. Consequently, the court was justified in concluding further reunification efforts would be futile. Finally, the record reflects that CWS devised a services plan to meet the parents' unique needs and regularly met with them to facilitate reunification. They simply did not take advantage of the services provided.
We conclude father has abandoned his appeal by failing to raise any claim of reversible error or other defect and that dismissal is appropriate. (Sade C., supra, 13 Cal.4th 952, 994.)
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A).