J.H. v. Super. Ct.

Filed 5/27/10 J.H. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Peter A. Warmerdam, Referee.

Kenneth Mason for Petitioner.

No appearance for Respondent.

Theresa A. Goldner, County Counsel, and Mark L. Nations, 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 courts orders 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 four minor children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In November 2008, Bakersfield police officers took petitioners four children, ranging in age from nine months to six years, into protective custody after the police found the two-year-old wandering the neighborhood dressed only in a diaper and sandals. The police located petitioner in his apartment and observed that the interior was dirty and in disarray. The police also found methamphetamine on petitioners person and arrested him. Petitioner told the police officers the childrens mother^[2]left several days before following an argument.

The Kern County Department of Human Services (department) filed original and amended petitions on the childrens behalf alleging petitioner and mothers methamphetamine use placed the children at risk of harm. The juvenile court detained the children pursuant to the petition and, in January 2009, exercised its dependency jurisdiction and ordered both parents to participate in counseling for child neglect, parenting, substance abuse, and submit to random drug testing. The children were placed together in foster care.

In November 2008, petitioner enrolled in parenting and child neglect classes, which he completed in February 2009. He also enrolled in substance abuse counseling in November 2008 but was discharged from the program in March 2009 because he was sentenced to prison on a drug charge.

In July 2009, the juvenile court conducted the six-month review hearing. Petitioner appeared in custody and the court was informed that petitioner expected to be in state prison for a year, that he was participating in Narcotics Anonymous (NA) meetings, that there was counseling he could participate in, and that the children were placed with his parents. The court continued reunification services for both parents and set the 12-month review hearing for January 2010.

Meanwhile, the department lost contact with the childrens mother and was unable to locate her. Petitioner had monthly visitation with the two oldest children at the prison.

In its report for the 12-month review hearing, the department recommended the juvenile court terminate petitioners reunification services and set a hearing to implement permanent plans for the children. The department also reported that mothers whereabouts remained unknown.

The 12-month review hearing originally set for January 2010 was continued and set as a contested hearing in February 2010. Petitioner appeared in custody and his attorney informed the court he was participating in a number of counseling programs and anticipated submitting a section 388 petition. At the conclusion of the hearing, the juvenile court found petitioner made minimally acceptable efforts and minimally availed himself of services provided to reunify him with his children. The court also found there was not a substantial probability the children could be returned to his custody after another six months of reunification services. Consequently, the court terminated reunification services for both parents and set a section 366.26 hearing.

Petitioner filed a notice of intent to file a writ petition (JV-820) and, prior to the filing of the juvenile record in this court, a petition for extraordinary writ (JV-825). In his writ petition, petitioner argued the juvenile court erred in finding he made minimal efforts and minimally availed himself of the services provided. In a letter dated February 8, 2010, apparently attached to the writ petition, petitioner contended he was participating in substance abuse counseling, in-prison drug testing, and participating in NA meetings. He stated parenting classes were not available in prison but that he participated in that service before his incarceration and planned to participate in any other related services as they became available. He stated he was scheduled to be released from custody in September 2010 and asked that the juvenile court not terminate his parental rights. He also attached an inmate Alcoholics Anonymous (AA) attendance record reflecting his attendance at 15 meetings from September 2009 to February 2010 as well as two letters from his AA/NA sponsor attesting to his thoughtful participation in group meetings and his insight into his addiction.

On March 30, 2010, the juvenile court record was filed in this court and petitioner was granted 10 days to file a writ petition pursuant to California Rules of Court, rule 8.452(c)(1). Petitioner filed a second writ petition pursuant to this courts letter reiterating his claim of error only. He subsequently waived oral argument and the matter was submitted.

DISCUSSION

On appeal, the juvenile courts orders are presumed to be correct. (In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Consequently, the appellant bears the burden of affirmatively demonstrating error. (Ibid.) With respect to writ petitions challenging the setting of a section 366.26 hearing, California Rules of Court, rule 8.452 (rule 8.452) specifies, inter alia, that the writ petition must include a summary of the significant facts and identify contested legal points with citation to legal authority and argument. (Rule 8.452(b).) At a minimum, the writ petition must adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.)

Real party in interest argues the writ petition should be dismissed because petitioner failed to comply with the content requirements for a writ petition pursuant to rule 8.452(b). However, rule 8.452(a)(2) compels a liberal construction of the writ petition in favor of its adequacy. In this case, petitioner contends the juvenile court erred in finding he made minimal efforts and minimally availed himself of the services provided. In so doing, he raised a legally cognizable claim of error and informed this court of the issue upon which he seeks review. Consequently, even though he did not support his claim of error with a summary of the facts and legal analysis, we will not penalize him for his lack of technical compliance and will review his writ petition.

The degree to which a parent avails himself or herself of services provided and the level of effort demonstrated in benefitting from those services relates to a determination the juvenile court must make at each review hearing. That determination is whether returning the child to parental custody would expose the child to a substantial risk of detriment. In this case, because petitioner was incarcerated, his children could not be returned to his custody and he did not ask that they be returned. Therefore, as we will explain, even if the juvenile court erred in finding he minimally availed himself of services provided and made minimal progress; it would not change its finding of detriment.

Generally, the juvenile court provides 12 months of reunification services to parents whose children have been adjudged dependents of the court. ( 361.5, subd. (a)(1)(A).) The juvenile court reviews the provision of services and the parents progress at six-month intervals. ( 366.21, subds. (e) & (f); 366.22, subd. (a).) At each review hearing, it is presumed the child will be returned to parental custody unless the court finds by a preponderance of the evidence that return would place the child at a substantial risk of detriment. (Ibid.) The failure of the parent to participate regularly and make substantive progress in his or her court-ordered plan is prima facie evidence that it would be detrimental to return the child. (Ibid.) Further, availing oneself of the services provided is just one factor the juvenile court must consider in determining whether a substantial risk of detriment exists. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141, 1142.) The court must also consider the progress the parent made in eliminating the conditions leading to the childrens removal. (Ibid.) Therefore, availing oneself of services and demonstrating progress are two factors that assist the court in assessing detriment but neither is determinative in the courts final decision. In addition, where, as here, the parent is incarcerated, the court must consider the particular barriers to the incarcerated parents access to court-mandated services and ability to maintain contact with the child. ( 366.21, subds. (e) & (f); 366.22, subd. (a).)

Petitioner contends the juvenile court mischaracterized his efforts as minimal when, as he explained in his letter, he participated in every service available to him. However, as we have explained, even if the juvenile court erred and petitioner completely availed himself to the services provided and made substantial efforts to comply, his children could not have been returned to his custody following the 12-month review hearing and he does not argue otherwise. Therefore, we affirm the juvenile courts finding it would be detrimental to return petitioners children to him.

In addition, we affirm the juvenile courts order terminating petitioners reunification services. At the 12-month review hearing, the juvenile court cannot continue services unless it finds a substantial probability the child can be returned to the parent by the 18-month review hearing. ( 366.21, subd. (g)(1).) In order to find a substantial probability of return, the juvenile court must find the parent made significant progress in resolving the problem(s) that led to the childs removal. ( 366.21, subd. (g)(1)(A)-(C).)^[3]

To the extent petitioner argues he made significant progress in resolving the problem(s) necessitating his childrens removal, the evidence does not support his argument. Even if he is credited with enrolling in and participating in all of the services available to him, he has yet to complete substance abuse counseling and demonstrate his ability to remain drug-free outside of the confines of prison. Consequently, we also affirm the juvenile courts finding there was not a substantial probability the children could be returned to petitioners custody by the 18-month review hearing and its order terminating reunification services.

That said, we want to address petitioners request that his parental rights not be terminated. That is a decision that is made at the section 366.26 hearing, which the juvenile court set for June 2010. At that hearing, petitioner will have the opportunity to argue why his parental rights should be preserved. In addition, nothing precludes petitioner from petitioning the juvenile court pursuant to section 388^[4]to modify its order terminating his reunification services should circumstances change such that it would be in his childrens best interests to do so. However, on this evidence, we affirm the juvenile courts order setting a section 366.26 hearing and will deny the petition.

DISPOSITION

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

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^*Before Gomes, Acting P.J., Hill, J., and Poochigian, J.

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

^[2] The mother did not file a writ petition.

^[3] The court must also find the parent consistently and regularly contacted and visited the child and demonstrated the capacity and ability to complete the objectives of his treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.

^[4] Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.