D.M. v. Super. Ct.

Filed 10/14/09 D.M. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Dependency Associates of Stanislaus, and Nadine Salim, for Petitioner.

No appearance for Respondent.

John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26^[1]hearing as to his son D.M. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and his wife, E.H.,^[2](mother) are the parents of two daughters, G. and D., and a son, D.M., the subject of this writ petition. Petitioner and mother each have an extensive history of drug abuse.

Dependency proceedings were initiated in August 2007 in Santa Clara County where the juvenile court adjudged then 14-year-old G. and 18-month-old D. dependents of the court after sustaining allegations of parental neglect including substance abuse. Petitioner and mother were offered reunification services.

Dependency proceedings were ongoing for G. and D. when, in February 2008, the Santa Clara Department of Children and Family Services (department) filed a non-detention dependency petition ( 300) on behalf of then-newborn D.M., alleging petitioner and mother had not made sufficient progress to return G. and D. to their custody thus placing D.M. at risk of harm. The juvenile court adjudged D.M. a dependent of the court, left him in parental custody and ordered family maintenance services. The family maintenance services plan required petitioner to participate in services which included parenting instruction and substance abuse treatment.

Over the next six months, G. and D. were returned home and the court continued family maintenance services. However, petitioner and mother were struggling to complete their case plan requirements.

In October 2008, then 15-year-old G. ran away from home, reportedly upset because petitioner and mother were using drugs. Petitioner and mother admitted relapsing and using drugs and alcohol. They each agreed to complete a drug assessment and drug test weekly but did not follow through.

In December 2008, petitioner and mother moved the family to Modesto in Stanislaus County. During an unannounced home visit, Santa Clara County social worker Judith Alvarez tested them for drugs and they tested positive for methamphetamine. As a result, G., D. and D.M. were taken into protective custody and a supplemental petition ( 387) was filed on their behalf alleging, in part, petitioner and mother tested positive for methamphetamine in December 2008.

In February 2009, the Santa Clara County juvenile court found the allegations in the supplemental petition true, terminated reunification services for G. and D. and set a section 366.26 hearing to implement a permanent plan as to them. The court ordered reunification services for petitioner and mother as to D.M. and set a March hearing to transfer the case to Stanislaus County.

Petitioners reunification plan required him to complete a basic parenting class, participate in individual therapy, submit to weekly random drug testing, attend weekly 12-step meetings and complete a drug assessment and complete the drug treatment program recommended. All three children were placed with their maternal grandfather and his wife in Modesto.

During the transition of the case to Stanislaus County, Ms. Alvarez was responsible for arranging court-ordered services in Modesto. Petitioner and mother told her there was a parenting class offered at Sierra Vista, which was within walking distance of their home and asked if they could attend. Ms. Alvarez approved the class for them and they began instruction in early February.

Ms. Alvarez also summarized her understanding of petitioners progress in each of his court-ordered services and provided him direction in a letter dated March 11, 2009. With respect to the drug assessment and recommended treatment, she informed petitioner she left him a message on March 10 referring him to Stanislaus Recovery Center (SRC) and providing him its address, telephone number and hours of operation. She requested petitioner complete the assessment within the week.

In April 2009, the Stanislaus County juvenile court accepted D.M. and D.s cases and the Santa Clara juvenile court retained jurisdiction over G.s case. The Stanislaus County juvenile court (hereafter juvenile court) set an interim hearing for May 2009 and the Stanislaus County Community Services Agency (agency) referred the parents to Ms. Bonsack, behavioral health specialist.

On April 27, 2009, petitioner and mother spoke to Ms. Bonsack by telephone. They both told her they used drugs the day before. Ms. Bonsack scheduled appointments for them which they did not keep. On May 5, Ms. Bonsack met with both parents who refused to drug test.

In its report for the interim hearing, the agency reported that the Sierra Vista parenting program was a community six-week program and was not designed for family reunification. Consequently, the agency sent Sierra Vista a referral for parenting instruction and individual counseling that would satisfy the case plan requirements.

In addition, the agency recommended the court adjudge D. and D.M. dependents and approve an updated reunification plan for D.M., which required petitioner and mother to participate in individual counseling and a parenting program at Sierra Vista, complete a drug and alcohol assessment and follow all recommendations for treatment which may include residential treatment and submit to random substance abuse testing. The agency also recommended the court set a section 366.26 hearing as to D. for June 2009 and a six-month review hearing as to D.M.

In May 2009, at the interim review hearing, the juvenile court adjudged D.M. a dependent of the court, adopted the revised reunification plan and set the six-month review hearing for July 2009.

By the time set for the six-month review hearing, petitioner and mother had not started drug treatment and only attended a few parenting classes. In its six-month status review, the agency recommended the court terminate reunification for both parents as to D.M. and set a section 366.26 hearing to implement a permanent plan of adoption.

Petitioner and mother challenged the agencys recommendation to terminate reunification services at a contested six-month review hearing which was conducted in July 2009. At the hearing, they argued Ms. Alvarez did not provide them reasonable services after they moved to Modesto in December 2008. Testimony focused on Ms. Alvarezs efforts to arrange parenting instruction and drug treatment acceptable to the court.

Ms. Alvarez testified she told petitioner and mother they could attend the parenting class at Sierra Vista after inquiring about their program. However, she was unable to describe the content of the program and was not aware it was only a six-week course. She was only aware that Sierra Vista offered classes that met reunification requirements. Sometime in March or April, she contacted Sierra Vista to check on the parents progress and was told they were no longer enrolled. She called various agencies to locate another parenting program without success.

Ms. Alvarez further testified she met with petitioner and mother in December 2008 and gave them drug testing identification cards and the address of a facility in Modesto where they could be drug tested. In late February or early March 2009, she referred petitioner to SRC for a drug and alcohol assessment and treatment.

Tamica Ellis, facilitator of the six-week Sierra Vista parenting class testified petitioner attended four classes and mother attended three. Mother told her they quit attending because they had to go back and forth to Santa Clara County for their case.

Petitioner testified he was confused as to the services he was required to complete, which he attributed to the transfer of his case between counties. He acknowledged Ms. Alvarez reviewed his case plan requirements with him but stated she did not tell him who to contact to initiate services. He denied receiving a letter from Ms. Alvarez in March referring him to SRC. He also denied ever having met with Ms. Bonsack but then stated he met with her in June when she referred him to SRC where he had been receiving services since mid-June. He also denied telling her he used methamphetamine a few months prior to that. In addition, petitioner testified he was on step 4 of the 12-step program and had sponsors in Santa Clara and Stanislaus Counties but had not had recent contact with them.

Petitioner further testified he stopped attending the parenting class at Sierra Vista after discovering it did not meet the courts requirements. Ms. Alvarez did not subsequently give them another referral for parenting instruction but another social worker did. He said he was attending parenting classes and participating in individual sessions.

On cross-examination, petitioner testified he had been drug-free since August 2007 despite the Santa Clara County juvenile courts finding he tested positive in December 2008 and Ms. Bonsacks statement he admitted drug use in April 2009. According to petitioner, Ms. Bonsack only asked him his drug of choice, which he testified is methamphetamine. He testified he was 32 years old and first used methamphetamine at the age of 22. His longest period of sobriety was two years beginning in August 2007.

Ms. Shahbazian, the Stanislaus County social worker assigned to D.M., testified father told her they quit attending the six-week parenting program at Sierra Vista because the Stanislaus County social worker referred them to a new program. However, upon checking their dates of attendance, it was discovered they quit attending in early March before the case was transferred to Stanislaus County. Had petitioner and mother completed the class, Ms. Shahbazian testified, she would have given them credit for attending the class.

In issuing its findings, the juvenile court first stated it did not find either parent credible given the large balance of evidence that contradicted their testimony. The court found petitioner and mother were provided reasonable services but did not regularly participate in them or make substantive progress. Rather, the court found they made very limited progress. Consequently, the court terminated reunification services and set a section 366.26 hearing. The court set a contested 366.26 hearing in August 2009 as to D.^[3] This petition ensued.

DISCUSSION

A.                 Reasonableness of services

Petitioner contends the juvenile court erred in finding he was provided reasonable services because Ms. Alvarez failed to arrange for parenting instruction and substance abuse treatment that would satisfy his reunification plan. On appeal, petitioner bears the burden of demonstrating error. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) On a challenge to the juvenile court's reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging in all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile court's finding, we will not disturb it. (Ibid.) Moreover, under our review, services need not be perfect to be reasonable. Rather, the standard is whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

As the juvenile court noted, drug treatment and parenting instruction were vital components of petitioners reunification plan and the appellate record attests to Ms. Alvarezs failure to ensure petitioner was enrolled in an agency-approved course. With little effort, Ms. Alvarez could have better informed herself before giving petitioner permission to participate in the course. Had she done so, the delay in enrolling in an approved course may have been avoided.

However, the fact that Ms. Alvarez could have been more diligent does not mean the overall effort to provide petitioner parenting instruction was unreasonable. The agency discovered the discrepancy and, in May, referred petitioner to an agency-approved parenting class. Had petitioner completed the six-week class, the agency was willing to credit it toward completion of the parenting requirement. Consequently, petitioners failure to satisfy the parenting objective of his case plan is more attributable to his own failure to participate in the parenting instruction offered than the social workers failure to make reasonable efforts to provide the service.

Further, even if petitioner was not provided reasonable parenting services, we would not conclude, on this evidence, the juvenile court erred in finding reunification services were reasonable. The most critical component of petitioners reunification plan was drug treatment and petitioner fails to explain how Ms. Alvarezs efforts to provide it were unreasonable. According to the appellate record, she left him a message informing him of his referral to SRC and followed up with a letter. Though petitioner denied receiving the letter, the juvenile court did not find him credible. Thus, the evidence supports a conclusion petitioner, by his own choice, waited until June to begin drug treatment.

Petitioners late entry into drug treatment reflects his failure to comply rather than a lack of reasonable effort on the part of the social worker. Consequently, we conclude, based on the foregoing, the juvenile court properly found petitioner was provided reasonable services.

B.                Substantial probability of return

Petitioner argues there was a substantial probability D.M. would be returned to his custody by the 12-month review hearing. Therefore, he contends, the juvenile court erred in terminating his reunification services.

Section 366.21, subdivision (e) governs the proceedings at the six-month review hearing and provides as relevant to this case:

If the child was under three years of age on the date of the initial removal and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child may be returned to his or her parent within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.

Having properly found petitioner was provided reasonable services, the juvenile court had no choice but to terminate reunification services unless there was a substantial probability of return. In order 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 removal of the child and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and well-being. ( 366.21, subd. (g)(1).)

Substantial evidence does not support a finding, in this case, that D.M. could be safely returned to petitioners care by the 12-month review hearing. Between Santa Clara and Stanislaus Counties, petitioner was provided services from August 2007 through July 2009, including drug treatment and parenting classes. Despite these extensive services, petitioner continued to use drugs, while denying such use. There is no reason to believe, given his lengthy history of drug use, denial and resistance to treatment, that petitioner would make sufficient progress to safely resume custody of D.M. in the short time remaining before the 12-month review hearing.

Accordingly, we also conclude the juvenile court properly found there was not a substantial probability D.M. would be returned to petitioners custody and affirm its orders terminating his reunification services and setting a section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J. and Dawson, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] E.H. also filed a writ petition in case No. F058194.

^[3] On August 3, 2009, the juvenile court terminated petitioner and mothers parental rights as to D. They both appealed and their cases are pending before this court (F058206 & F058276).