A.M. v. Superior Court

Filed 12/12/08 A.M. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A. M. (father) seeks writ relief (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452)[1] from the juvenile courts order terminating family reunification services and setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his son A. M. (child) (born 2006). He challenges the juvenile courts conclusion to terminate the services and finding that he was provided reasonable services. We reject the challenges and deny the petition.

legal background and scope of review

Once a child has been detained under juvenile court custody, family reunification efforts are required. ( 319, 361.5, subd. (a).) Reunification services are time limited. For a child who is three years old or younger on the date of initial removal from the custody of a parent, court-ordered services are not to exceed six months. ( 361.5, subd. (a)(2).) Services may be extended up to a maximum of 18 months if it can be shown that a substantial probability exists that the child may safely be returned home within an extended six-month period, or if reasonable services had not been provided to the parent. (Id. subd. (a)(3).)

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. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366. ( 366.22, subd. (a).)

While simply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court, . . . it is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) In other words, parental compliance with the reunification plan does not automatically result in a childs return to parental custody. (Ibid.) Rather, the decision to return the child to parental custody depends on the courts assessment of the effect that return would have on the physical and emotional well-being of the child. ( 366.22, subd. (a).) When the juvenile court considers whether to deprive a parent of custody, it is concerned about the parents grasp of the important parenting concepts--things such as a childs need for security, adequate nutrition and shelter, freedom from violence, proper sanitation, healthcare, and education. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790.) By the time of the section 366.22 hearing, the Legislature has determined a childs need for stability and security within a definitive time frame becomes paramount. The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.)

The juvenile court has wide discretion in ruling at the 6-, 12-, or 18-month review hearing, and consequently, appellate courts will uphold the courts finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) If substantial evidence exists, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) To determine whether there is substantial evidence to support the courts findings, we review the evidence most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the courts ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

factual background

Real party in interest Monterey County Department of Social and Employment Services (Department) filed the within petition on January 16, 2007, pursuant to section 300, subdivision (b) (failure to protect) because the child had been born with methamphetamine in his system, his mother had admitted using methamphetamine during pregnancy, his mother had been involved in domestic violence with O. M., and his mother and O. M. had been taking drugs. In March, the juvenile court found jurisdiction and ordered reunification services for the mother and O. M. At a three-month review hearing in May, the juvenile court found that O. M. was not the childs biological father and dismissed O. M. from the case. The mother identified J. R. as the childs father. At a six-month review hearing in August, the mother posed that father might be the childs father. (Father and the mother had three nondependent children who were in fathers custody.) At a contested six-month review hearing in October, the juvenile court terminated reunification services as to the mother and declared father to be the childs biological father. At a continued contested six-month review hearing in November for father, the juvenile court ordered reunification services.

At an interim review hearing in February 2008, the social worker reported that one of fathers case-plan conditions prohibited him from permitting the mother to have unsupervised visits with the three nondependent children in his custody. She stated the following: He is participating in parenting classes. They started in January. And the major concern that the Department has right now is that the kids are still being allowed--the nondependent children, three kids, 8, 5, and 4 years old, are still being allowed to have visitation with the mother, unsupervised. To this, the juvenile court addressed father as follows: [D]o you understand that [the childs] mother, unless things have changed since the petition was initially filed, she probably is not able to even care for herself, much less should be left with unsupervised visits with the other children. [] Do you understand that? Father replied, I guess and Well, shes been taking care of them on weekends for over a year, and there hasnt been no major problems or anything like that. The trial court concluded: [I]f this continues and I hear competent evidence in this courtroom that youre allowing the other childrens [sic] welfare to be jeopardized because of these weekend stays with their mother, it may well affect your ability to reunify with [the child]. It may be detrimental to that. [] Because one logically could say that if you dont appreciate the difficulties that the mothers having as to [the child], the youngest child, or the older children, then certainly, it would carry on into your ability to make sure that [the child] is protected from that environment, as well.

For a 12-month review hearing set for May 2008, the social workers report noted that dependency cases for the three other children had been commenced because, on the weekend following the February interim review hearing, the three children were under their mothers care when the mother suffered from a substance induced psychosis which resulted in the [police] having to taze her in front of the children. The report also states that father (1) had admitted using methamphetamine and drinking heavily in January 2008 while the three children were probably with the mother, (2) was supposed to begin play therapy with the child in April but cancelled the appointment, and (3) had not yet obtained a NA sponsor. In recommending that reunification services be terminated, the report continued: [Father] has only recently begun the Sun Street Recovery Outpatient program on April 14, 2008. [Father] has not understood the risk of allowing [the mother] unsupervised visitations and had not acknowledged that she had a substance abuse problem. This is concerning as it puts into question his understanding of his own substance abuse history, the importance of sobriety, the effects of the parents drug use on children and ability to parent while under the influence. [Father] has only recently begun attending NA meetings and stopped when he started attending his outpatient services on April 14, 2008. [Father] is still early in his recovery and needs to develop and maintain ties in the recovery community. It was not possible for [father] to show significant progress in addressing his substance abuse history as his participation has been slow to start and so far, minimal. [Father] has reported that he is not able to provide a urine specimen when being watched by staff at Doctors on Duty so the Department has been unable to consistently drug test him. By his own admission, he last used methamphetamines and drank heavily on two separate occasions in the month of January and has about four months of sobriety. Also, he does not have a strong support system and has trouble opening up and asking for help. [] [Father] has limited insight into his childrens needs and repeatedly states that hes doing the best he can. A staffing was held with [father] and the service providers on April 28, 2008, to discuss the recommendation that would be taken for this court hearing. The undersigned spoke about the main concern of [father] continuing to show poor judgment in trusting the mother to care for the kids although the mother had a substance abuse problem. Previously, [father] stated that he needed time for himself and that no one else could care for his children and therefore allowed the mother to care for the children. [Father] states that having had the other children . . . witness the mothers drug induced psychosis, being tazed, and arrested on March 2, 2008, must have been traumatic for the kids and states that he would never let this happen again. However, [father] was repeatedly advised by the undersigned and admonished by the Court [at the interim review hearing in February] to not allow the children to have unsupervised visits with their mother . . . . The following weekend . . . the children were taken into protective custody while under the care of the mother. While the Parents as Teachers Instructor has seen a bond between [the child] and father, [fathers] progress and realization of his neglect in continuing allowing the mother to have unsupervised visitations with the mother was very slow. [Fathers] response to this was that he was sorry and that he was not going to allow this to happen again. At this point, his response is not reassuring because it had to take his children being put at risk in order for him to come to this conclusion instead of him realizing this on his own. The team came to a consensus that the Department had no choice but to recommend terminating family reunification services to the father. The report concluded: Before the court is a child who is under the age of three. The father has a history of domestic violence and substance abuse. He continued to show poor judgment in allowing his other children to be cared for by the mother. [Father] has not demonstrated sufficient basic problem solving skills in regards to providing appropriate care for his children. . . . He has also had difficulty scheduling time for his services and asking for help in trying to problem solve to get to his services. He does not have a strong support system and has verbalized this to previous social workers. . . . He is struggling to appropriately parent the children he does have in his care, and returning [the child] would only compound his struggles. . . . The Department was initially opposed to recommending family reunification services to the father due to his lack of insight of the danger he was exposing his children to by repeatedly allowing the mother to have unsupervised visitations. However, [father] was given six months of services, and the same concerns were repeatedly stressed to [father], but his acknowledgement of his children being put at risk with the mother did not change until after the fact on March 2, 2008. While he did eventually come to this realization, it unfortunately took much too long. [Father] had repeated fair warnings regarding the risks he was exposing his children to but he failed to see this. [Father] was told that the Department needed to see him making significant progress with his case plan activities, yet he relapsed in January, continued to allow his children be cared for by their mother, was slow to start his outpatient program, has not obtained a sponsor, and says he does not know how to go about getting one. [Father] appears to be a very concrete thinker who has trouble problem solving and by his own admission asking for help. [] It does not seem that [Father] to date understands the severity of the mothers addiction. [Father] was given an opportunity and chose not to prove to the Court that he could safely care for his children and arrange for appropriate supervision. [Father] has admitted that he still loves [the mother] and allowing the children to have time with their mother could also be fulfilling his own needs in keeping in contact with the mother, putting his needs before his childrens safety. [] [The child] is a vulnerable toddler who needs a parent who is able to consistently meet his basic needs, including child care. Given [fathers] behavior pattern, lack of insight, and poor support system, the Department can not [sic] assume that given four more months of services, he would be able to successfully reunify with his son. [The child] has been placed with his current caregivers since July of 2007, who have been able to consistently meet his needs. Extending services to the father would only delay permanency for [the child]. Therefore, the Department recommends that services be terminated for the father.

The juvenile court ultimately commenced the contested hearing on July 11, 2008, 18 months from the time the child was detained, and concluded it on September 5. It admitted the social workers report, an addendum report, and a family assessment into evidence without objection and heard testimony from the social worker, fathers sisters, and fathers child care provider for two of the three older children. The social worker reiterated from her reports and added that father had still (as of September 5) not obtained an NA sponsor or graduated from his drug treatment program (because he had incorrectly reported his last drug usage as March 2007 rather than January 2008).

The juvenile court articulated that father had made inadequate progress in his substance abuse program and continued to allow the three older children to be exposed to the mother. It then made the required findings.

discussion

Father contends that the Department failed to establish that placing the child in his custody would create a substantial risk of detriment to the child. He urges that there were only two incidences of unsupervised visits in question and they were four and 12 months old. He adds that the tazing incident got him to the point of understanding the detriment to his children of their having contact with the mother. He asserts that his substance abuse problem had not negatively impacted the children in his custody, he had met the needs of the children in his custody, and he had a family support system to assist him.

Fathers analysis is erroneous. It is no more than a reargument that, at best, demonstrates that the juvenile court could have decided in his favor. Although the record shows evidence favorable towards fathers position, there is substantial evidence to support the courts finding that placing the child in fathers custody would be detrimental to the childs well-being.

Father violated the conditions of his case plan by permitting the mother to have unsupervised visits with the three nondependent children in his custody even after being warned against doing so by the juvenile court. This is prima facie evidence that return of the child would be detrimental.

Father also abused drugs, took drugs after having been given reunification services, lied to his drug counselor about his last incident of drug usage, failed to drug test consistently, and failed to make significant progress in his recovery (slow to outpatient treatment; no sponsor). These lapses support that father failed to participate regularly and make substantive progress in court-ordered treatment programs and also constitute prima facie evidence that placing the child with him would be detrimental to the child. While we applaud father for the progress he has made, the juvenile court could reasonably have concluded that the progress was too short-lived in light of his history to suggest a permanent prognosis given that the time when the statutory limitation on court-ordered services was imminent.

Even though the juvenile court might have reached a different result had it believed other evidence, we conclude that substantial evidence supports the judgment. Despite fathers progress, the juvenile court could have reasonably determined that father had not yet demonstrated the ability to ensure the childs safety, protection, or physical or emotional well-being in his care. Again, fathers arguments would require us to view the evidence in the light most favorable to him, and to disagree with the juvenile courts deductions and resolution of credibility issues. We may not do so. (See In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The substantial evidence test is not concerned with whether substantial testimony supports fathers position, or whether there is substantial conflict, but rather whether there is substantial evidence in favor of the respondent. If this substantial evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.) Father maintains that the evidence does not support the juvenile courts finding that reasonable reunification services had been provided to him. He specifically complains that (1) a family assessment did not take place until April 2008, five months after reunification services were ordered, and (2) the social worker had not been to his home to witness his interaction with the older children and only observed interaction once in her office for 10 minutes on July 11, 2008.

First, father is incorrect about the family assessment. As father acknowledges in the factual background portion of his petition, the therapist completed the assessment on February 26, 2008. The assessment was part of fathers case plan that he signed on January 16, and the therapist interviewed father on January 31 and February 11. It is true that only five months remained from the assessments completion until the 18-month deadline so as to follow through on the recommended therapy, but the juvenile court could reasonably have concluded that father was responsible, at least in part, for the time constraint given the delayed paternity testing. The juvenile court remarked: [B]ut for a father of three other children, whos living with the mother, not to at least have a question as to who the parent is of this newborn child that has come into their family . . . but I think anybody in a reasonable world would query whether or not, since he apparently was at least living with the mother and they had an ongoing relationship, he was the father of [the child] as well as the three other children that was living at the home. But be that as it may, [father] did not get the results of the paternity test until October [2007].

And second, the juvenile court could reasonably have discounted the necessity for witnessing fathers interaction with the three older children given that fathers positive relationship with the three children was not in question. It noted: [Father] is doing well raising those other three children . . . .

We conclude that substantial evidence supports the juvenile courts finding that reasonable reunifications services had been provided to father.

disposition

The petition for writ of mandate is denied. This opinion is final as to this court immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(2).)

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Further unspecified statutory references are to the Welfare and Institutions Code.