In re Christopher M.
Filed 6/11/13
In re Christopher M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In re CHRISTOPHER M., a Person Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff
and Respondent,
v.
CHARLES E.,
Defendant and Appellant.
F066122
(Super. Ct. No. 516144)
THE COURT
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APPEAL from
orders of the Superior Court of
County. Ann Q. Ameral, Judge.
Thomas S.
Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
John P.
Doering, County Counsel, and Robin L. Gozzo, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Appellant Charles E. challenges the sufficiency of the
evidence to support the juvenile court’s order issued at a contested 12-month
review hearing (Welf. & Inst. Code, § 366.21, subd. (f))
three-year-old son, Christopher. Charles
contends he substantially complied with his court-ordered services. Therefore, he further contends, the
rather than extending the time for him to complete them. We conclude
juvenile court’s termination order and affirm.
PROCEDURAL AND
FACTUAL SUMMARY
In July 2011, then 15-month-old
Christopher was removed from the custody of his mother Melody by the Stanislaus
County Community Services Agency (agency) because of Melody’s drug use. Melody identified Charles, who was living in
Calaveras County, as Christopher’s biological father. Charles said he did not have a suitable home
for Christopher at that time.
Christopher was placed in foster care.
In October
2011, the juvenile court exercised its dependency jurisdiction, ordered
Christopher removed from Charles and Melody’s custody and ordered family
reunification services. Charles’s
reunification plan required him to complete a parenting program and a drug and
alcohol assessment and submit to random drug testing. The juvenile court also ordered weekly
two-hour visitation and set a six-month review hearing in April 2012.
Over the
next six months, Charles completed eight of ten parenting classes and was
participating in one-on-one parenting sessions.
However, he tested positive for marijuana twice and had yet to enter a
drug treatment facility despite receiving a referral for
marijuana if he wanted to gain custody of Christopher. He said he had to find a job and a place to
live so he could support him. By April
2012, Charles was living with his girlfriend and her mother in a house. He was hoping to move in with his mother so that
Christopher could visit him there.
In April
2012, at the six-month review hearing, the juvenile court found Charles and
Melody made limited progress but continued their reunification services to the
12‑month review hearing which it set for September 2012.
In August
2012, the agency filed its report for the 12-month review hearing and
recommended the juvenile court continue reunification services for Melody and
Charles. By that time, Melody was
actively participating in her services plan.
However, the agency had doubts about her ability to care for Christopher
and felt she needed a psychological evaluation.
Meanwhile, Charles completed his parenting program and was transitioned
to intensive outpatient treatment in June 2012 because of his continuing
marijuana use. In July, his counselor
reported he participated in group sessions but appeared reluctant to fully
engage in the recovery process. In
August, after three unexcused absences, Charles was discharged from the
program. Charles was not aware he was
discharged from the program because he was working at an alpaca ranch. He told the social worker he would return to
treatment. The agency reported Charles
regularly visited Christopher and Christopher enjoyed their visits.
In
September 2012, on the date set for the 12-month review hearing, the agency
changed its recommendation and asked the juvenile court to terminate Charles’s
reunification services because he did not reenter drug treatment. The juvenile court set a contested 12-month
review hearing for October 2012 and ordered Melody to complete a psychological
evaluation.
In October
2012, the juvenile court conducted the contested 12-month review hearing over
two sessions. Social worker Kathleen
Grundy testified Charles was still not in drug treatment. He attempted to reenter drug treatment in
Calaveras County the day after the September hearing, but was told he needed a
new assessment and referral from the agency.
The agency subsequently scheduled an assessment for Charles in September
but he missed it, explaining that he was ill.
The agency scheduled a second assessment in September. Charles missed that appointment as well. His mother stated he was ill. The agency scheduled a third assessment in
early October and Charles attended.
During the assessment, he tested positive for marijuana and was deemed
to need intensive outpatient drug treatment.
Ms. Grundy said he had not begun treatment because the agency had to
resubmit the contract.
Ms. Grundy
also testified Charles told her his home would not pass inspection and she was
unaware if he subsequently obtained another living arrangement. Following her testimony, the juvenile court
continued the hearing and set it out nine days.
At the
continued hearing, Charles’s attorney made an offer of proof which was accepted
that Charles would allow an assessment of his home, he returned to drug
treatment the day before, and he believed he tested positive for THC
previously used to smoke marijuana.
At the conclusion of the hearing,
the juvenile court continued services for Melody and set an 18-month review
hearing.
“minimal†progress in his services plan and terminated Charles’s reunification
services. In so doing, the juvenile
court stated it did not believe Charles’s explanation as to how he ingested THC
and attributed his failure to progress in his services plan to “dragging his
feet.†This appeal ensued.
DISCUSSION
Appellate counsel contends the juvenile
court erred in terminating Charles’s reunification services at the 12-month
review hearing because Charles “substantially complied with his services
plan.†Appellate counsel, however, cites
no statutory or case authority to support his contention, and the case
authority he cites is for general principles only.
When, as
here, appellate counsel fails to present argument and authority, the court of
appeal may deem the appeal abandoned. (
1113, 1119.) We decline to do so in this
case. Instead, we construe the appeal as
challenging the juvenile court’s finding there was not a substantial
probability of return and review the merits.
Substantial Probability of Return
Section
366.21, subdivision (f) governs the proceedings at the 12-month review
hearing. It requires the juvenile court
to first determine whether the child can be returned to parental custody and if
not whether reunification services should be continued.
If the
juvenile court does not return a child to parental custody at the 12-month
review hearing, it must either continue reunification services to the 18-month
review hearing or set a section 366.26 hearing.
(§ 366.21, subd. (g).) As
pertinent here, the juvenile court must continue services if it finds a
substantial probability the child will be returned to the parent’s physical
custody and safely maintained in the home.
(§ 366.21, subd. (g)(1).)
In order to
find a substantial probability of return, the juvenile court must make all
three of the following findings: (1) the
parent consistently and regularly contacted and visited the child; (2) the
parent made significant progress in resolving the problems that led to the
child’s removal from the home; and (3) the parent demonstrated the capacity and
ability to complete the objectives of the treatment plan and provide for the
child’s safety, protection, and physical and emotional well-being. (§ 366.21, subd. (g)(1)(A)-(C).)
In this
case, substantial evidence supports a finding Charles did not make significant progress in resolving the problems that
required Christopher’s removal. After a
year of reunification services, Charles continued to use marijuana and did not
have a suitable home for Christopher.
Appellate counsel does not dispute that evidence. Instead, counsel argues Charles
“substantially complied†with his services plan by completing other aspects of
it such as parenting instruction.
“Substantial compliance,†however, is not the standard and compliance
with one component does not, in this case, amount to “significant progress†as
we explain.
A reunification plan is designed to
remedy the problem(s) requiring the child’s removal from parental custody. The plan is comprised of objectives the
parent must meet and specific services the parent must complete to satisfy
those objectives.
In this case, the agency was unable
to place Christopher with Charles because Charles did not have a suitable
home. Consequently, acquiring such a
home became one of Charles’s reunification plan objectives. Not long after Christopher was removed, the
agency discovered that Charles used marijuana.
Thus, the agency referred him for a drug assessment to determine the
level of treatment he required. The
agency also included parenting instruction in Charles’s plan. Parenting instruction is a common service
provided not necessarily to remedy a specific problem, but to augment the
services designed to target the core problem(s).
In assessing a parent’s progress,
the juvenile court considers the parent’s efforts with respect to each
component of the plan, but ultimately bases its assessment on the parent’s
overall efforts and success in addressing the core problem(s). Thus, compliance in parenting instruction, for
example, does not translate into significant progress in a case such as this
where marijuana use and lack of a home were the core problems.
Having
concluded substantial evidence supports a finding Charles failed to make
significant progress, a required finding for substantial probability of return,
we affirm the juvenile court’s order terminating Charles’s reunification
services.
DISPOSITION
The
juvenile court’s order issued on October 26, 2012, terminating appellant’s
reunification services is affirmed.
Levy, Acting P.J., Gomes, J., and Poochigian, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
