E.F. v. Superior Court

E.F. v. Superior Court





Filed 1/6/12 E.F. v. Superior Court CA4/1




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

E.F. et al., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D060543 (San Diego County Super. Ct. No. SJ12415)
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Garry G. Haehnle, Judge. Petition denied. Request for stay denied.

E.F. contends that the juvenile court erred when it set a hearing to select and implement a permanency plan for his daughter, A.F., under Welfare and Institutions Code[1] section 366.26. He asserts that the juvenile court abused its discretion by applying an incorrect legal standard when it denied his request to extend family reunification services to the 18-month review date. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
E.F. and B.C.[2] are the unmarried parents of A.F., who will be two years old in January 2012. In July 2010 the San Diego County Health and Human Services Agency (the Agency) filed a petition on A.F.'s behalf under section 300, subdivisions (b) and (g). The Agency alleged that E.F. hit B.C. in the face, injuring her and knocking her unconscious. Police discovered the parents smoking marijuana in A.F.'s presence and arrested them, leaving A.F. without adequate care. Police also discovered Ecstasy pills under a mattress in the home. E.F. later acknowledged that the pills were his.
The juvenile court sustained the petition under section 300, subdivision (b). The Agency placed A.F. in the care of B.G., a nonrelative extended family member who had raised E.F. from the age of 12. The court ordered a plan of family reunification services. E.F.'s plan focused on his need for domestic violence and substance abuse treatment. E.F. was also ordered to complete a parenting education program and to participate in a 12-step program.
In February 2011, at the six-month review hearing, the social worker reported that E.F. had been released from jail in October 2010. He contacted the social worker when he was released, enrolled in a 52-week parenting education course, participated in domestic violence treatment services, found part-time work and visited A.F. almost every day. E.F. participated in random drug testing, and all of his tests were negative for drug use. However, E.F. did not enroll in a substance abuse treatment program. The juvenile court continued family reunification services to the 12-month review date.
The 12-month review hearing was held on September 14, 2011. The juvenile court admitted the Agency's reports in evidence and considered testimony from the social worker, B.G. and B.C. The court accepted E.F.'s stipulation that he was living with his mother, earning approximately $100 a month, and that his payments for his domestic violence treatment program had been deferred.
The Agency reported that E.F. tested positive for cocaine in April 2011. He did not complete the intake process for substance abuse treatment until June. E.F. failed to appear for a drug test on August 2. He offered to test the following day, but the social worker did not allow him to test, stating that drug testing had to be random in order to be effective. By September, E.F. had graduated from a substance abuse class that was required as a condition of probation. He had eight absences from the program, but he was testing negative and his participation was deemed satisfactory. E.F. was attending 12-step meetings. He was working on step 1 of the program and did not have a sponsor.
The Agency also reported that E.F. had attended 13 sessions of a domestic violence treatment (DV) program, but stopped attending in March because he could not afford to pay for the classes.[3] The Agency gave him referrals to low-cost DV programs. E.F. was eventually accepted into a DV program that had a flexible payment schedule. In September, the DV program facilitator said that E.F. was slowly but surely engaging in the program. According to the facilitator, E.F. was very young and was in denial about his responsibility for domestic violence, and instead blamed his mother and B.C. for his required participation in the DV program.
E.F. attended three or four parenting classes. In March, he stopped attending classes because of the cost. The Agency provided him with referrals to other parenting education programs, including no-cost classes. However, E.F. did not enroll in a parenting education program.
B.G. testified that during the year he had cared for A.F., E.F. visited her at least six days a week. E.F. visited for 12 hours on each weekend day, eight hours on Tuesday and Thursday, and approximately two hours on Monday, Wednesday and Friday. E.F. cared for A.F. during visits. He fed, changed and bathed her, and put her to bed. He provided supplies for her care. A.F. called E.F. "Daddy," and cried when he left.
The social worker reported that A.F. was thriving in her placement. She was active and socially engaging, and had a happy and content temperament. On September 1, the social worker observed a visit between E.F. and A.F. At one point, A.F. reached into the social worker's purse. E.F. appropriately redirected A.F. to her toys. A.F. pulled out a duck, said "duck" and quacked. The social worker did not have any concerns about E.F.'s interactions with A.F.
The juvenile court found that neither parent had made significant progress in resolving the issues that led to A.F.'s removal from the home. The court stated:
"I'm not even sure at this stage on a child under three I have to make those findings, because I think [the parents are] only entitled to services to the 12-month date. They don't get an 18-month date normally. I think they're cut short because [A.F. was under age three at the time she was removed from her parents]. I think their 18-month date is technically their 12-month date, so I don't necessarily have to make those findings. I will, but I think they're only entitled to 12 months of services and that's the end date, because of the difference between [a child under three years of age and a child over three years of age]. But I've read some case law that indicates with a child under three [the parents] only have a right to 12 months of services.

"Regardless of that, neither parent has demonstrated the capacity and ability to complete the objectives of their case plan, based on what I've heard today in court and what I read in evidence that's been put before the court. Therefore, I will order reunification services to the parents to be terminated."

The juvenile court set a hearing on January 11, 2012, to select and implement a permanency plan for A.F. under section 366.26.
E.F. petitions for review of the juvenile court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) He asks this court to reverse the order setting a section 366.26 hearing, and to remand the matter with directions to the juvenile court to conduct a new 12-month review hearing under the correct legal standard that the court is to apply in determining whether to extend family reunification services to the 18-month review date. This court issued an order to show cause, the Agency responded, and the parties waived oral argument.
DISCUSSION
A
The Parties' Contentions
E.F. contends that the juvenile court applied an incorrect legal standard when it denied his request to continue family reunification services to the 18-month review date. He asserts that the court mistakenly believed it did not have the authority to extend services to 18 months for a child who was under the age of three years when removed from parental custody. E.F. argues that the error was not harmless in view of his progress in services and his bonded relationship with A.F. He asks this court to issue a writ directing the juvenile court to conduct a new 12-month review hearing under the correct legal standard.
B
Legal Principles and Standard of Review
When a child is removed from parental custody, unless specified exceptions apply, the juvenile court must order family child welfare services for the child and the parent to facilitate family reunification. (§ 361.5, subds. (a), (b).) For a child under three years of age on the date of the initial removal from parental custody, reunification services are presumptively limited to six months, and may be provided "no longer than 12 months from the date the child entered foster care." (§ 361.5, subd. (a)(1)(B).) "The child's status, and the question whether services should be extended for an additional period, must be reconsidered no less frequently than every six months. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009.)" (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 (Tonya M.).)
At the 12-month review hearing, if the child is not returned to parental custody, the juvenile court has the discretion to continue the case to the 18-month review date, set a section 366.26 hearing, or order a permanent plan of long-term foster care for the child. (§ 366.21, subds. (g)(1), (2) & (3).) At this point, the statutory framework permits the juvenile court to extend services to the 18-month review date to the parent of a child who was under three years of age on the date of the initial removal from parental custody. (§ 361.5, subd. (a)(3).) Specifically, section 361.5, subdivision (a)(3), provides that notwithstanding section 361.5, subdivision (a)(1)(B), which limits the provision of reunification services to a parent of a child under the age of three to 12 months, "court-ordered services may be extended up to a maximum time period not to exceed 18 months" after the child was originally removed from parental custody if the juvenile court finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, or that reasonable services have not been provided to the parent. (§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1).)
To find a substantial probability that the child will be returned to parental custody and safely maintained in the home, the juvenile court is required to find all of the following:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.

"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.

"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1).)

The reviewing court must affirm an order setting a section 366.26 hearing if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
C
The Juvenile Court Made the Findings Required
Under Section 366.21, Subdivision (g)(1)

California's juvenile dependency scheme provides for "three distinct periods and three corresponding distinct escalating standards for the provision of reunification services to parents of children under the age of three." (Tonya M., supra, 42 Cal.4th at p. 845.) "The effect of these shifting standards is to make services during these three periods first presumed, then possible, then disfavored." (Ibid.)
Here, the juvenile court recognized the distinct standards for extending the family reunification period to the 18-month review date when the dependency proceedings involve a child who was under the age of three on the date of the initial removal from parental custody. The court correctly noted that in such cases, the reunification services are not "normally" extended to the 18-month review date, and the parents are not "entitled" to an extension of services after the 12-month review date. To the extent that the court's oral remarks did not clearly or accurately reflect the statutory framework, the record shows that the court in fact proceeded as required by statute. (§ 366.21, subd. (g)(1).) Prior to setting the section 366.26 hearing, the court made the findings required under section 366.21, subdivision (g)(1), and determined that there was not a substantial probability that A.F. would be returned to the custody of her mother or father, and safely maintained in one of their homes before February 17, 2012, the 18-month review date. (§ 361.49.) Thus, any error on the part of the juvenile court was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
There is substantial evidence to support the juvenile court's findings. The court found, and the record shows, that E.F. maintained regular and consistent visitation with A.F., satisfying the first prong of the three part test under section 366.21, subdivision (g)(1). (§ 366.21, subd. (g)(1)(A).) However, the record also supports the findings that E.F. did not make substantive progress in resolving the problems that led to A.F.'s removal from parental custody, and did not demonstrate the capacity and ability both to complete the objectives of his treatment plan and to provide for A.F.'s safety, protection and well-being. (§ 366.21, subd. (g)(1)(B),(C).)
The primary focus of E.F.'s court-ordered case plan was to allow him to gain and maintain his sobriety through substance abuse treatment, to resolve domestic violence issues, and to recognize the negative effects that substance abuse and domestic violence have on his daughter and become a protective parent. The record shows that E.F. did not consistently engage in substance abuse treatment and a DV program until June 2011. He did not complete a parenting education program. E.F. tested positive for cocaine in April and failed to appear for a drug test in August, which was therefore considered presumptively positive. There is thus substantial evidence to support the finding that E.F. did not make substantial progress in resolving the problems that led to A.F.'s removal from his care. (§ 366.21, subd. (g)(1)(B).)
In view of E.F.'s sporadic participation in substance abuse treatment, domestic violence treatment and parenting classes, the juvenile court could reasonably conclude that E.F. did not demonstrate the capacity and ability to complete the objectives of his treatment plan and safely care for A.F. before the date of the 18-month review hearing. (§ 366.21, subd. (g)(1)(C).) We conclude that the juvenile court did not err when it terminated E.F.'s family reunification services and set a hearing under section 366.26.
DISPOSITION
The petition is denied. The request for stay is denied.


AARON, J.

WE CONCUR:



HUFFMAN, Acting P. J.



McDONALD, J.