G.S. v. Superior Court















Filed 11/22/10 G.S. v. Superior Court CA5



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

G.S., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

F060793 (Super. Ct. No. 09CEJ300131-1) O P I N I O N

THE COURT^*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Mary Dolas, Temporary Judge. (Pursuant to Cal. Const., art. VI § 21.)
G.S., in pro. per., for Petitioner.
No appearance for Respondent.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26^[1] hearing as to his son J. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
In May 2009, then five-year-old J. was taken into protective custody by the Fresno County Department of Children and Family Services (department) after his mother, Tonya, left him with an unrelated adult male in a home where pornography and marijuana were accessible to him. Tonya had a history of instability and substance abuse. At the time, petitioner's whereabouts were unknown. J. was placed in foster care.
In July 2009, the juvenile court adjudged J. a dependent of the court. By this time, petitioner had appeared for the proceedings and was appointed counsel. At the dispositional hearing in November 2009, the juvenile court ordered petitioner and Tonya to participate in a plan of reunification, which required them to complete a parenting class, participate in recommended substance abuse treatment and submit to random drug testing.
Petitioner promptly engaged in his court-ordered services. In December 2009, he completed a parenting program. In January 2010, he completed the residential phase of drug treatment. In addition, he was enjoying unsupervised visitation with J. However, he did not continue with aftercare drug treatment. Consequently, he was discharged from the drug treatment program in late January or early February 2010. Around that same time, he stopped drug testing. By March 2010, petitioner had reentered aftercare treatment and was placed on a compliance contract. In addition, he was asked to provide a hair follicle for drug testing. After resisting for several weeks, he provided the hair follicle which tested positive for methamphetamine in late March 2010. Approximately three weeks later, petitioner was arrested for violating his parole by having ammunition in his home. In late April 2010, the juvenile court granted the department's request to modify visitation from unsupervised to supervised visitation.
In July 2010, petitioner appeared in custody at the six-month review hearing. The juvenile court found Tonya made minimal efforts to complete her court-ordered services and that petitioner's efforts were minimal. The court continued services to the 12-month review hearing, which it set for the end of July 2010.
In its report for the 12-month review hearing, the department recommended the juvenile court terminate petitioner and Tonya's reunification services and set a section 366.26 hearing to consider a permanent plan of adoption or legal guardianship. The department reported that Tonya still struggled with untreated substance abuse and that petitioner was scheduled to be released from custody in mid-August 2010. However, he was facing a new charge related to his possession of ammunition. The department concluded neither parent demonstrated the capacity to complete their case plan objectives and safely parent J.
In August 2010, the juvenile court conducted a contested hearing on the department's recommendations. Petitioner appeared out-of-custody. He testified he was unable to participate in services while in custody because they were not available. He said he had an appointment to reenter aftercare services. He also said he had been clean and sober since the previous April and was bonded with his son. Through his attorney, he asked the court to continue services for another six months.
At the conclusion of the hearing, the juvenile court found it would be detrimental to return J. to the custody of either petitioner or Tonya. The court also found the department provided them both reasonable services, but their progress was minimal. The court terminated reunification services and set a section 366.26 hearing. This petition ensued.^[2]
DISCUSSION
Petitioner contends he should be given additional time to reunify with J. In support of his contention, he cites his participation in services prior to his incarceration and the unavailability of services to him while in custody. Further, he advises this court of his current progress. Notably, petitioner does not specifically set forth a claim of juvenile court error. Nevertheless, we will construe the petition as challenging the juvenile court's order terminating his services and will affirm it for the reasons now set forth.
The purpose of reunification services is to correct the conditions that led to removal of the dependent child. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) However, the time in which to reunify is limited. Where, as in this case, the child was over the age of three years when initially removed from parental custody, reunification services are provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care. (§ 361.5, subd. (a)(1)(A).) A child is considered to have entered foster care on the earlier of the date of the jurisdictional hearing or the date that is 60 days from the date the child was initially removed from the physical custody of the parent(s). (§ 361.49.) Here, J. was initially removed from Tonya's custody in May 2009, 60 days from which fell in July 2009. Since the
jurisdictional hearing was conducted in July 2009, it marks the beginning of the 12-month period of reunification. Consequently, the statutory 12-month period of reunification services for petitioner ended in July 2010.
Further, the juvenile court has limited options if it cannot return the child to parental custody at the 12-month review hearing. (§ 366.21, subd. (g).) As relevant to this case, it can either continue reunification services to the 18-month review hearing or set a section 366.26 hearing. (§ 366.21, subd. (g)(1) & (2).) However, in order to continue services, the juvenile court must find there is a substantial probability 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 were not provided. (§ 366.21, subd. (g)(1).) Since petitioner does not challenge the reasonableness of services, we need only address whether there was a substantial probability of return. Though the juvenile court did not make an express finding in that regard, we can infer a finding if it is supported by substantial evidence. (In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) In assessing whether there is a substantial probability of return, the juvenile court must find the parent made significant progress and demonstrated the ability to safely parent the child. (§ 366.21, subd. (g)(1)(B) & (C).)
Though petitioner made initial efforts to comply with his court-ordered services, his efforts quickly waned. By February 2010, he discontinued drug treatment and drug testing. Within two months, he was incarcerated on a parole violation. By his actions, he in effect halted the reunification process before demonstrating the level of progress indicative of one capable of and committed to safely parenting his son. For these reasons we conclude there was not a substantial probability J. could be returned to petitioner's physical custody after another six months of services. Accordingly, we affirm the juvenile court's orders terminating petitioner's 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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