J.K. v. Super. Ct.
Filed 8/27/13
J.K. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
J.K.,
Petitioner,
v.
THE SUPERIOR COURT OF MERCED
COUNTY,
Respondent,
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
F067491
(Super.
Ct. No. JP000639)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
J.K., in pro. per., for Petitioner.
No appearance for Respondent.
James N.
Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
INTRODUCTION
Petitioner, J.K.
(mother), filed an extraordinary writ petition (Cal. Rules of Court, rule
8.452)
children, H.K. and S.K. (collectively “the minorsâ€). Mother seeks relief from the juvenile court’s
order issued at the status review hearing setting a Welfare and Institutions
Code section 366.26 hearing.
name="_ftnref3" title="">[2] We will deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A section
300 juvenile dependency petition regarding
the minors was filed August 9, 2012. The
next day the juvenile court conducted a detention hearing at which it found
that allowing the minors to remain in the home of the parents would be contrary
to their welfare and ordered that temporary placement and care of the minors be
vested in the
County Human Services Agency (agency).
At the time of this order, the minors were age 4 and age 2,
respectively.
On October
3, 2012, at the jurisdiction hearing, the juvenile court found the allegations
of the petition true.
On November 1, 2012, at the
disposition hearing, the court made various findings, including that “there is
a substantial danger to the physical health and safety, or physical or
emotional well-being of the minors, or would be if the minors were returned
home…, and the Court therefore makes findings pursuant to ... [section] 361[,
subdivision] (c)(1) because [mother] continues to have an untreated substance
abuse and mental health problem. In
addition, [mother] continues to be non-compliant with the Court order[ed] drug
screen.†The court declared each minor
to be a dependent child of the juvenile court; placed the minors in the care,
custody and control of the agency; ordered the agency to provide reunification
services to mother; ordered mother to enter into a “Child Welfare Services
Plan/Agreement†(case plan) with the agency and to “comply with all provisions
thereofâ€â€™; and set a six-month status review hearing (§ 366.21, subd. (e)) for
May 1, 2013.
On April
26, 2012, the agency filed a status review report (report) recommending family
reunification services for the mother be terminated and a section 366.26
permanency planning hearing be set. In
support of the recommendation, the social worker stated the following: Mother reviewed with social workers and
signed her case plan on November 1, 2012.
The case plan required, inter alia, that mother remain free of drugs and
alcohol, submit to random drug testing, participate in mental health services
provided by the agency, and enroll in and complete a parenting class. Mother
failed to comply with the plan in the following respects:
On seven occasions between December
21, 2012, and April 20, 2013, she refused to take drug tests and/or tested
positive for various substances including methamphetamine, amphetamines and
marijuana.
She attended two mental health
counseling sessions, most recently on September 10, 2012, but since that date
she had not provided verification that she had received mental health
services.
She was referred to a parenting
class, but on February 13, 2012, she arrived 15 minutes late for the
class. She was told that if she arrived
late “she was considered no show.†She
left the class and did not return. She
was again referred and went to the class on April 6, 2013, but again arrived
late. She was told that if she missed
the next session she could be dropped from the program. She missed the next scheduled class and as of
the writing of the report, which was dated April 25, 2013, she had not enrolled
in a parenting class.
“[She] failed to satisfactorily
complete her Child Dependency court ordered services as designed to aid her
overcome the problems which led to the initial removal of her children. [Mother] continues using illegal drugs and is
involved in criminal activities, as demonstrated by her positive toxicology
drug screens and arrests on November 7, 2012, and February 14, 2013, related to
drug charges.â€
On May 1, 2013, the six-month
review hearing was continued to June 4, 2013, and on that date continued to
June 18, 2013.
On June 17, 2013, the agency filed
an addendum to the report, which stated the following: Mother tested positive for marijuana and
methamphetamine on April 29, 2013. On
June 4, 2013, she was asked to submit to random drug testing. She said she would “go test†that afternoon
but failed to do so. The next day she
explained that she “was busy and could not go,†and said she would submit to
testing the next morning. At that time,
however, she again failed to appear for testing. A social worker reported that mother received
an initial mental health assessment on May 7, 2013, and was diagnosed with
“bi-polar type 1, without psychotic.â€
Mother was instructed to call back for an appointment but failed to do
so.
The six-month review hearing was
conducted on June 18, 2013. Mother did
not present any evidence. After stating
it had read and considered the report and the addendum to the report, the court
ordered reunification services to mother terminated and set a section 366.26
hearing for October 10, 2013.
DISCUSSION
Section 366.21, subdivision (e)
(section 366.21(e)) governs the proceedings at the six-month review
hearing. Under section 366.21(e), where,
as here, multiple children are removed from the parents’ custody at the same
time and at least one of those children is under age three at the time of
removal, the juvenile court may terminate reunification services and schedule a
section 366.26 hearing only if the court finds by clear and convincing evidence
“the parent failed to participate regularly and make substantive progress in a
court-ordered treatment plan.†(§
366.21, subd. (e).)
title="">[3]
As best we can determine, mother’s
sole contention in the instant writ proceeding is that the evidence was
insufficient to support the treatment plan finding.
As a preliminary matter, we will
not review the documents mother included with her writ petition because they
were not presented to and considered by the juvenile court. (See rule 8.452(b)(1) [writ petition seeking
review of an order setting a section 366.26 hearing must be accompanied by a
memorandum which “must provide a summary of significant facts, limited to
matters in the recordâ€]; cf. In re Zeth
S. (2003) 31 Cal.4th 396, 405 [“It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a judgment as of the
time of its rendition, upon a record of matters which were before the trial court
for its consideration’â€].)
The findings of juvenile courts
made pursuant to section 366.21 are reviewed under the
James B. (1995) 35 Cal.App.4th 1014,
1020.) Substantial evidence is evidence
that is “‘reasonable, credible and of solid value,’†which would allow a
reasonable trier of fact to reach the conclusion the juvenile court
reached. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is substantial evidence to
support the order, contradicted or not, the appellate court must affirm the
decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) We must “view the evidence in a light most
favorable to the respondent,†and “indulge in all reasonable and legitimate
inferences to uphold the judgment.†(
1352, 1361.)
Here, as indicated above, the
record demonstrates the following:
Mother’s court-ordered case plan required that she refrain from using
drugs, submit to drug testing, and participate in mental health counseling and
a parenting class. Mother, however, on
multiple occasions tested positive for methamphetamine, amphetamines and/or
marijuana and failed to submit to drug testing, failed to attend and, indeed,
make a required appointment for, mental health counseling; and arrived late for
her parenting class on multiple occasions and eventually simply failed to show
up for class. On this record, the
evidence was overwhelming that mother “failed to participate regularly and make
substantive progress in a court-ordered treatment plan†within the meaning of
section 366.21(e). Thus, substantial
evidence supports the treatment plan finding.
To the
extent mother’s argument can be construed to include a claim that not only did
the evidence not support the treatment plan finding, but also that the court in
fact failed to make that finding, we note the following:
At the June
18, 2013 six-month review hearing, the court, rather than make detailed
findings and orders, simply stated, “The Court ... adopts the findings and
recommendation [of the agency, set forth in report and addendum to the report,]
and makes them the order of the Court.â€
The only explicit reference to the court-ordered treatment plan in those
recommended findings is the following:
“The Court finds by a
preponderance of evidence that return of the children to the custody of
[mother] would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the children as the parent
has failed to satisfactorily complete the Court Ordered Treatment Program,
and/or the initial problems leading to out of home placement have not been
alleviated.†(Italics added.) This finding, as the italicized portion of
the preceding quoted passage makes clear, does not constitute a finding by
clear and convincing evidence, as required by section 366.21(e).
The only
other finding at the six-month hearing that relates to the subject matter of
treatment plan finding is the following:
“The court finds that the extent of the progress made by the parent
toward alleviating or mitigating the causes necessitating placement has been
minimal to no progress for [mother].
[Mother] continues testing positive for illegal drugs and has not
demonstrated that she can live free from drug dependency. She is not actively participating in
counseling to address her mental health issue.
[Mother] failed to engage in parenting classes that were designed to
improve her parenting techniques and help her to overcome the problem which led
to the initial removal of her children.
[Mother] is currently homeless and has not demonstrated that she can
provide a safe home environment for her children. She continues her involvement in criminal
activities, as demonstrated by her recent arrests.†This finding, however, although it makes
reference to facts upon which a treatment plan finding could be based, does not
explicitly state that the court found by clear and convincing evidence that
mother failed to participate regularly and make substantive progress in a
court-ordered treatment plan.
We assume
without deciding that the foregoing does not constitute compliance with the
requirement of a treatment plan finding.
Nonetheless, we conclude such error does not compel granting the instant
writ petition.
In
G.), the parents of two minor children, each of whom had been declared a
dependent child of the court (§ 300), appealed from an order made following a
contested permanency planning hearing. (
failed to make a finding required by former section 366.25, subdivision
(d). The court of appeal agreed with the
parents that the court failed to make the statutorily required “express
determination†(Corienna G., at p.
83) in question, but rejected the claim that such failure required reversal and
remand to allow the court to comply with the statute. The court explained: “While we agree that the better practice
would have been for the trial court to have made a required determination on
the record, we perceive no practical purpose which would be achieved by such a
result.†(Id. at p. 83.) “Substantial
evidence would amply have supported such a determination here.†(Id.
at p. 84.)
Similarly,
in the instant case, where, as demonstrated above, the evidence amply supported
the conclusion that mother “failed to participate regularly and make
substantive progress in a court-ordered treatment plan†within the meaning of
section 366.21(e), there is no practical reason to remand the matter to allow
the court to make the required finding.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Kane, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] All further rule references are to the
California Rules of Court.
