In re Alexis M.

Filed 10/10/07 In re Alexis M. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING; petition for writ of mandate. Valerie Skeba, Juvenile Court Referee. Petition denied.

Law Office of Timothy Martella, Eliot Lee Grossman and Edward Edge for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Owen L. Gallagher, Principal Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.

_________________________________

Petitioner Chase M. seeks extraordinary writ relief (Welf. and Inst. Code,

366.26, subd. (l);^[1] Cal. Rules of Court, rule 8.452) from the juvenile courts order, made at the conclusion of the statutory limit for reunification ( 366.22), setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his 32-month-old daughter Alexis M. We deny the petition, finding no merit in Chase M.s contentions the court erred in determining Alexis would be at risk if returned to Chase M.s custody, and should have ordered extension of reunification beyond the statutory limit.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2005, two days after Alexis M. was born, a social worker for the Los Angeles County Department of Children and Family Services (Department) responded to a report from the hospital advising that Alexiss mother, G.B., had tested positive for methamphetamine at the time of the birth. On February 15, 2005 G.B. signed a voluntary family maintenance agreement that provided Alexis would stay with G.B. in the home of Alexiss maternal grandmother (Mary F.), with whom G.B. had been living.

Further investigation by the Department disclosed Chase M. was living with his mother (Jackie M.) in a home without water, electricity or gas. Jackie M. told the social worker Chase M. and G.B. used drugs and engaged in physical altercations. Chase M. told the social worker that he, G.B., Mary F., and Jackie M. all used drugs together. The social worker gave Chase M. referrals for drug treatment with testing and domestic violence counseling.

On March 4, 2005 the Department was informed that Chase M. had been involved in an altercation with Jackie M. in which he brandished a knife, and as a result he was homeless or living with a friend. On March 7, 2005, after the Department was informed that a maternal uncle living in Mary F.s home was dealing drugs, the social worker told Mary F. that Alexis M. could remain in the home only if the uncle and G.B. left. When Mary F. refused to oust the uncle and G.B., and after G.B. attempted to circumvent a drug test by using somebody elses urine sample, the Department removed Alexis from Mary F.s home and placed her in foster care.

On March 8, 2005 Chase M. signed a voluntary family reunification agreement. The social worker explained to Chase M. the requirements of his case plan and gave him a list of referrals for drug counseling with random testing and individual and group counseling. On June 13, 2005 Chase M. was arrested for possession of drug paraphernalia. On June 21, 2005 he was again arrested for possession of paraphernalia, and on July 15, 2005 he was placed on two years probation.

On August 17, 2005, G.B. and Chase M. having failed to enroll in any of the programs required by the voluntary family maintenance agreements, the Department filed a petition under section 300 to declare Alexis a dependent child of the juvenile court. The petition alleged (inter alia) G.B. and Chase M. had engaged in numerous violent altercations and acts of domestic violence between themselves and with Jackie M., and both had a history of drug abuse. The court ordered Alexis detained and suitably placed, with reunification services for G.B. Chase M. did not appear for the detention hearing and was found to be Alexiss presumed father. On August 24, 2005 the Department informed the court that Chase M. could not be located, explaining that Jackie M. had reported Chase M. was no longer living in her home and the criminal court had reported Chase M. had failed to appear for hearings on July 15, 2005 and July 20, 2005.

In its report for the jurisdiction and disposition hearing the Department stated Chase M. had not shown compliance with the courts orders, had not contacted the social worker, and could not be located despite the social workers multiple efforts which included at least ten telegrams or telephone messages. On September 22, 2005, Chase M. and G.B. having failed to appear for a mediation hearing, the court sustained an amended dependency petition alleging, as to Chase M., his use of drugs including methamphetamine and marijuana and his domestic violence involving G.B. and Jackie M. The court ordered Chase M. to complete programs of drug counseling with random testing and individual/group therapy to address domestic violence issues, and continued the case to March 23, 2006 for the six-month review hearing. ( 366.21, subd. (e).)

In its report for the six-month review hearing the Department indicated Chase M.s whereabouts remained unknown. He had failed to make himself available despite numerous certified letters and telegrams from the social worker to his last known address at Jackie M.s home. A search of the criminal court records indicated he had been arrested twice again, on January 27, 2006 and February 16, 2006, and each time was released the same day. The Department recommended the court terminate reunification and set a hearing to select a permanent plan for Alexis. In a last-minute addendum report for the March 23, 2006 hearing the Department stated Chase M. had appeared at the Departments office on March 16, 2006 and told the social worker he did not want to lose Alexis. The social worker noted Chase M. appeared dirty and unkempt, with a thick overgrown beard, his hands embedded with dirt, and with a strong stench emanating from his body. Chase M. told the social worker he was living in Jackie M.s home which had no electricity, water or telephone, and also stated he had not participated in any programs and was clean of methamphetamines but was using marijuana. Chase M. agreed to test for drugs the following day, but he did not appear for the test. On March 21, 2006 Chase M. had a monitored visit with Alexis at the Departments office. Alexis was very upset during the visit, cried inconsolably, began to vomit when placed in Chase M.s arms, and calmed down only after her foster mother arrived. Chase M. told the social worker he had an intake appointment for a drug diversion program, but could not enroll because Jackie M. attended the program. The social worker gave Chase M. a referral to another facility. The Department repeated its recommendation of termination of reunification.

Chase M. appeared for the six-month review hearing on March 23, 2006. The court continued the matter to May 24, 2006 for a contested hearing on request of G.B. and Chase M. The court advised Chase M. that reunification services may be terminated and ordered him to enroll in a drug rehabilitation program with random testing, counseling to address domestic violence and anger management issues, and a 12-step program with daily meetings.

The Departments report for the contested six-month review hearing indicated Chase M. tested positive for marijuana on March 23, 2006. On March 24, 2006 the social worker gave Chase M. a referral packet with information on counseling and therapy, substance abuse programs, random testing, 12-step meeting schedules, domestic violence counseling, and parenting information. Chase M. signed an acknowledgement stating he received the information. The social worker also gave Chase M. a list of the courts orders for his case plan and transportation funds to enable him to attend the programs. The Department also reported Alexis cried extensively during her latest two visits with Chase M. On April 7, 2006 Chase M. tested positive for amphetamine, methamphetamine and marijuana. The social worker was concerned that Chase M. was using his transportation funds to purchase drugs, and told him the funds would be cut off if he continued to test positive. On April 14, 2006 the social worker mailed a new list of drug rehabilitation referrals to Chase M. On April 20, 2006 Chase M. told the social worker he had enrolled in a 90-day drug rehabilitation program. The Department recommended termination of family reunification.

Chase M. did not appear for the contested six-month review hearing on May 24, 2006. The court found Chase M. was in partial compliance with his case plan and the Department had not made reasonable efforts to enable Alexis to return to Chase M.s home. The court continued the case to October 18, 2006 for the 12-month review hearing. ( 366.21, subd. (f).)^[2]

On August 9, 2006 the Department submitted a report advising that Alexis showed great anxiety and emotional distress during her visits with Chase M., and requesting the court order that the foster parents be present during visits. The Department also indicated Chase M. had completed his 90-day drug rehabilitation program and was residing in a sober living home. On August 29, 2006 the court ordered that further visits take place in a therapeutic setting, and Chase M. was given discretion to allow the foster mother to be present. On September 1, 2006 the foster parents filed a request for de facto parent status.

In a report submitted October 10, 2006 for the 12-month review hearing, the Department indicated Chase M.s visits continued to be emotionally traumatic for Alexis, who consistently rejected Chase M. and cried out for mommy and daddy (the foster parents), sometimes crying for up to an hour and a half. When the social worker asked Chase M. when he planned to enroll in individual counseling to address his domestic violence issues, he replied, I do not have time to complete this. I will need to stop therapeutic sessions or something else in order to have time to complete therapy sessions. Chase M. was attending parenting classes but had not provided documentation of attendance in 12-step meetings or proof of a sponsor. The Department further reported Alexis had formed a strong bond with the foster parents and their two children, with whom she had now lived for 19 months and who wished to adopt her. Noting that Chase M. was living in a structured sober living home, had been sober for just seven months, and had not participated in individual counseling to address his domestic violence and anger management issues, the Department recommended the court terminate reunification and set a hearing pursuant to section 366.26.

On October 18, 2006 the court granted the foster parents request for de facto parent status and continued the 12-month review hearing to November 28, 2006. On November 28, 2006 the Department submitted an additional report indicating Alexis continued to cry and call for her mommy during visits with Chase M. On November 28, 2006 the court continued the matter to December 14, 2006 for a progress hearing, ordered the Department to prepare a supplemental report assessing Chase M.s visitation with Alexis, and set the case for a contested 12-month review hearing on February 27, 2007.

In its report for the December 14, 2006 progress hearing the Department stated Alexis continued to be resistant to Chase M. during visits and cry out for the foster mother. Chase M.s therapist, who attended three of the visits, reported that Chase M. had become less tense and uncomfortable at visits, and opined Chase M. would benefit from continued development of parental skills. The Department also reported Chase M. had told the social worker that Jackie M.s husband had fixed up the home and would permit Chase M. to move into the home when he left the sober living home. Because Jackie M.s husband had a criminal history however, the social worker believed it would not be in Alexiss best interest to move into Jackie M.s home with Chase M. At the hearing on December 14, 2006 the court denied Chase M.s request for unmonitored visitation and ordered him to enroll immediately in a parenting program.

In a further report for the contested 12-month review hearing the Department stated Alexis refused to visit with Chase M. on December 20, 2006, throwing herself on the ground and crying mommy, mommy. Alexis screamed and cried during several subsequent visits, although Chase M.s conduct during visits continued to improve. On February 16, 2007 Chase M.s therapist wrote to the social worker stating her opinion there had been a strengthening of a parent/child bond between Chase M. and Alexis, Chase M. was exhibiting awareness of Alexiss needs, and Alexis now appeared comfortable with Chase M. The therapist recommended unmonitored visitation. In a second letter written six days later however, the therapist withdrew her recommendation of unmonitored visitation for Alexiss safety in view of information received from the Departments social workers to the effect Chase M. may expose Alexis to family members who had not been cleared for unmonitored visitation, and that Alexis continued to cry and leave early when visiting with Chase M. while supervised by a social worker. In its report, the Department further stated Chase M. had told the social worker he was thinking about renting an apartment with three other men from the sober living home, or perhaps living with Mary F., or with Jackie M. The Department recommended termination of reunification in view of Chase M.s inability to make appropriate decisions for living arrangements with Alexis; his continued residence in an adult-only sober living home; his failure to complete counseling to address domestic violence and anger management issues; his failure to complete a parenting program; and his sobriety for just a short period of time.

The contested 12-month review hearing commenced February 27, 2007 before juvenile court referee James Lillicrap, with further sessions on February 28, 2007 and March 1, 2007. On that date the hearing was continued to March 20, 2007. On March 20, 2007 the matter came before juvenile court referee Valerie Skeba, who declared a mistrial and set a new contested 12-month review hearing for April 27, 2007.^[3]

In a last minute information report submitted March 1, 2007 the Department had indicated Chase M.s therapist called the social worker that day to clarify her previous letters, explaining that her job was to assist Chase M. in building a relationship with Alexis, stating that unmonitored visits would allow him to demonstrate his parenting skills, and further asserting it was not her place to recommend Alexiss return to Chase M.s care. In a supplemental report submitted April 24, 2007 the Department stated the social worker had again contacted Chase M.s therapist, who now opined Chase M.s visits should remain monitored. The Department further indicated information received from a counselor at the rehabilitation center where Chase M. was attending programs showed Chase M. had not participated in domestic violence counseling as ordered by the court, and had only partially participated in anger management classes. Chase M. had been provided with additional referrals for domestic violence counseling, but had not provided proof he had enrolled in any program.

The contested hearing commenced April 24, 2007 as a combined 12-month and 18-month review hearing ( 366.22) with the testimony of Chase M., who admitted he had a problem with methamphetamine, marijuana and alcohol, but stated he had been clean since he began rehabilitation in April of 2006. Chase M. further testified he had not completed domestic violence or anger management counseling because the social worker told him he was required to attend individual counseling and not group counseling, and he could not afford individual counseling. Chase M. added he would be starting an anger management class that very evening, although he denied any need to participate in anger management classes. Chase M. testified he could provide a home for Alexis at a sober living home, but later admitted he was not certain the home would permit him to reside there with Alexis. Chase M. testified he did not act on various referrals provided to him by the social workers because they were out of [his] financial range. He also testified his relationship with Alexis was slowly growing.

When the hearing resumed on April 25, 2007 Michelle Tapia, the social worker assigned to the case until September of 2006, testified she told Chase M. he was required to attend individual counseling to address domestic violence and anger management issues and there were some problems in obtaining funding for individual counseling, but also told Chase M. he could attend individual or group counseling with a specific facility (AV Light Foundation).

Robert Ippolito, the current social worker, testified he told Chase M. that group counseling would satisfy the counseling component in his case plan if the counseling addressed anger management and domestic violence, but Chase M. did not participate. Chase M. did participate in other components of his case plan and had made progress in maintaining sobriety. Ippolito also testified that although Chase M.s conduct during visits had recently improved, he could not recall a time when Alexis willingly had physical interaction with Chase M., and she was always happy and excited when the foster mother returned. Ippolito further testified Chase M. did not have adequate housing for him and Alexis, he had told Ippolito the sober living home would not accept children, and he had instead suggested he may move in with Jackie M. or Mary F. and Ippolito had told Chase M. those homes were inappropriate for Alexis.

At the conclusion of testimony, the court requested counsel submit closing arguments in writing, and on May 2, 2007 arguments were filed by Chase M., the Department, and Alexis. Chase M. argued the Department had not provided reasonable reunification services, principally because social worker Tapia erroneously told him he was required to attend individual domestic violence and anger management counseling which he could not afford, and because the social workers acted to thwart his visitation by falsely telling Chase M.s therapist they had information suggesting that Chase M. might expose Alexis to unapproved relatives if visitation was unmonitored, and also that Alexis cried during visits and wanted to end the visits early. Chase M. claimed the social workers false statements manipulated his therapist into changing her recommendation from unmonitored to monitored visitation, at the very time Chase M. was showing improvement in parenting skills and establishing a bond with Alexis. Chase M. requested the court extend reunification for an additional six months.

The Department requested termination of reunification, noting Chase M. had failed to complete the requirements of his case plan, had failed to acquire parenting skills or establish a bond with Alexis, and did not have suitable housing plans for her care.

Alexis also requested termination of reunification, stressing Chase M.s failure to complete domestic violence counseling, the poor quality of his visits with Alexis, and the absence of a parental bond. Additionally, counsel noted Alexis viewed her foster parents as her parents, urging she would be ripped apart if she were to be separated from them.

On May 3, 2007 the court announced its decision to terminate reunification services and set the case for a hearing pursuant to section 366.26. The court explained that notwithstanding some confusion and miscommunication between the social workers and Chase M. with regard to the domestic violence component of Chase M.s case plan, the Department did a reasonably good job in trying to give him referrals. The court found that Chase M. had done an excellent job addressing his substance abuse issues, but delayed too long in attempting to form a relationship with Alexis, and the resulting lack of any parental bond would place Alexiss well-being at risk if returned to his care. The court also expressed concern over Chase M.s lack of suitable housing for Alexis. The court proceeded to terminate reunification and set a hearing pursuant to section 366.26.

CONTENTIONS

Chase M. contends (1) the juvenile court erroneously found Alexiss return to his care would create a substantial risk of detriment to her well-being, and (2) reunification services should have been extended for an additional six months.

DISCUSSION

1.      Substantial Evidence Supports the Courts Finding Alexiss Return to Chase M. Would Create a Substantial Risk of Detriment to Alexiss Well-Being.

At the 18-month review the court must order a childs return to his parents custody unless it finds, by a preponderance of evidence, return of the child will create a substantial risk of detriment to the childs safety, protection, or physical or emotional well-being. (366.22.) In this case, the record contains ample evidence to support the courts finding of substantial risk of detriment.

When we review a sufficiency of the evidence challenge, we look only at whether there is any evidence, contradicted or uncontradicted, that supports the trial courts determination. We resolve all conflicts in support of the determination and indulge in all legitimate inferences to uphold the courts order. Additionally, we do not substitute our deductions for those of the trier of the fact (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212), and we have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or the reasonable inferences that may be drawn therefrom. (In re Stephen W. (1990) 221 Cal.App.3d 629, 642.) Nor is a parents compliance with his case plan the sole factor to be taken into account in determining whether there is a risk of detriment. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140; In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.) The mere completion of the requirements of the reunification plan such as participating in counseling and treatment programs and visiting the child is just one consideration under the statute (366.22), and the court must also consider to what extent the parent has ameliorated the conditions that required court jurisdiction. (In re Dustin R., supra, 54 Cal.App.4th at pp. 1141-1142.)

With this standard of review in mind, the courts finding Alexiss return to Chase M. would create a substantial risk of detriment to Alexiss well-being is supported by substantial evidence. The record, as we have set forth, shows that after more than 20 months of reunification services, which followed a five-month period of voluntary family maintenance services, Chase M. had failed to acquire proper parenting skills, had not established a bond with Alexis, and lacked suitable housing plans for her care. Nor had Chase M. completed counseling to address his anger management issues, which further establishes Alexis would be at risk if returned to his care. We reject Chase M.s suggestion a continuance of the hearing for two or three weeks to enable him to obtain proper housing would have removed the risk to Alexis, in view of the ample evidence in the record, apart from the lack of proper housing, indicating Alexis would be at risk if returned to Chase M.s care.

2.The Court Did Not Abuse its Discretion by Declining to Extend the Reunification Period for an Additional Six Months.

We find no abuse of discretion in the juvenile courts refusal to exercise discretion to extend reunification beyond the 18-month statutory limit. ( 366.22.) The cases in which appellate courts have ruled reunification services may continue beyond the 18-month statutory period have involved truly exceptional circumstances, involving some external factor that thwarted the parents efforts at reunification. (See, e.g., In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1728 [no reunification plan was ever developed by the Department for the father]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [mother was hospitalized during most of the reunification period, and after her release the Department attempted to restrict visitation]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209, 1212-1214 [the Departments reunification services for the father were a disgrace].)

This case is not the sort of extreme case of dereliction by the Department warranting extension of reunification beyond the 18-month statutory limit. Although at the six month review hearing the court found that the Department had not provided sufficient services, the record shows that during the ensuing 11 months the Department provided Chase M. with multiple referrals for his court-ordered programs, gave him funds to attend programs, attempted to facilitate his visitation with Alexis, and communicated with Chase M.s therapist to assist him in making progress with his case plan. The record further shows that the Departments efforts to assist Chase M. were unsuccessful principally due to his initial indifference, failure to attend required programs, and inability to form a proper bond with Alexis.

We reject Chase M.s claim the social worker engaged in bad faith conduct that thwarted his ability to comply with his case plan, by misrepresenting the requirements of the plan to him and by giving false information to his therapist to prevent him from having unmonitored visitation. It is for the trial court, which is in a superior position to observe the demeanor of witnesses, to determine credibility of witnesses, to consider and resolve inconsistencies in testimony, and to determine the weight that should be given to such testimony. (People v. Smith (2005) 37 Cal.4th 733, 739; In re George T. (2004) 33 Cal.4th 620, 634; In re Katrina C., supra, 201 Cal.App.3d at p. 547; In re Stephen W., supra, 221 Cal.App.3d at p. 642.) In this case, after hearing the testimony of Chase M. and the social workers, the trial court found there was no bad faith conduct but merely confusion, misunderstanding or miscommunication. Under these circumstances, this case does not present the sort of dereliction or exceptional circumstances warranting an extension of the 18-month statutory limit for reunification. The record thus fully supports the juvenile courts determination Alexiss welfare and her need for permanence and stability overrode any claim by Chase M. to additional services. (In re Marilyn H. (1993) 5 Cal.App.4th 255, 307.)

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2]At the October 18, 2006 hearing the court terminated reunification services for G.B.

^[3] The circumstances leading to the mistrial are not clear. The courts minute order of March 20, 2007 states the mistrial was declared because referee Lillicrap is no longer the referee in this court.