Joseph L. v. Superior Court

Filed 10/12/07 Joseph L. v. Superior Court CA2/2

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

ORIGINAL PROCEEDING; Petition for extraordinary writ. Anthony Trendacosta, Commissioner. Writ denied.

Law Offices of Katherine Anderson, Victoria Doherty and Jennifer Meister for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Real Party in Interest.

* * * * * *

Petitioner, Joseph L., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code,  366.26, subd. (l);^[1]Cal. Rules of Court, rule 8.452.) We find sufficient evidence supports the juvenile courts finding that petitioner did not substantially comply with the juvenile court orders and therefore deny the petition.

I. PROCEDURAL HISTORY AND STATEMENT OF FACTS

Dependency Petition. On February 21, 2005, A.D. (born Nov. 2004) was detained from her mother, O.D.,^[2](O.) because Mykael W., one of two women who lived with O., reported that O. was neglecting A. According to Mykael W., O. used marijuana every day, her boyfriend was a pimp, she had an outstanding warrant for her arrest on drug-related charges, there had been a previous incident during which A. had sustained a red mark on her head of unknown origin, and Mykael W. was worried that O. had mental problems. At the time A. was detained, petitioner was serving a three-year prison sentence at Tehachapi State Prison.

On February 24, 2005, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of A., alleging that petitioner had a history of substance abuse and drug-related criminal activity which periodically rendered him incapable of providing regular care for A., and that such detrimental conduct endangered A.s physical and emotional health and safety and placed the child at risk of serious harm.

Detention Hearing. A detention hearing was held on February 24, 2005. DCFS reported that petitioner had had several arrests and a conviction for possession and sales of marijuana and cocaine. Petitioners expected release date from prison was June 10, 2006.

The juvenile court found petitioner to be an alleged father. DCFS was directed to provide petitioner with reunification services, and to interview petitioner to determine what services should be provided to him. A. was ordered to remain in the home of Jamie L., petitioners former foster mother.

Adjudication Hearing. An adjudication hearing was held on May 5, 2005. DCFS reported on its interviews with petitioner, Jamie L. and Mykael W.

Petitioner told the social worker he had spoken to Jamie L. and found out O. had been shaking A. According to petitioner, O. had used marijuana ever since he met her and she did not intend to stop. Petitioner admitted that he had used marijuana in the past, but claimed he had not used it for the past two years. He was in jail for possession of marijuana and intended to enroll in substance abuse classes and parenting classes.

Jamie L. confirmed she had taken A. to the hospital after O. had shaken him. Jamie L. worried because O. used marijuana and drank alcohol excessively and brought strangers into the home. O. liked playing with the baby but did not want to have to do motherly chores.

Jamie L. stated that petitioner had been in foster care since he was two years of age. She first met him when he was about 11 years old when he lived in a group home. Petitioner had lived with her when he was about 17, but left because he did not want to follow house rules. O., too, had been raised in a group home.

Mykael W. said that petitioner had used marijuana and drank alcohol excessively since he was 14 years old.

The petition was ordered amended by interlineation. The petition, alleging that petitioner had a history of substance abuse and drug-related criminal activity and that he would be in incarcerated until June 2006, was then sustained. Petitioner was denied reunification services pursuant to section 361.5, subdivision (e).

Six-Month Status Review Hearing. A section 366.21, subdivision (e) hearing was held on October 20, 2005. The social worker providing reunification services to the family did not appear to know the juvenile court had denied petitioner reunification services. Therefore, he kept in contact with petitioner with respect to programs petitioner was attending in prison. Petitioner told the social worker he regretted not having had a chance to hold A., and he continued to want custody once he was out of prison. Petitioner admitted to DCFS that he had a drug history, in that he had used drugs intermittently since age 17. Petitioner stated that he wanted Jamie L. to become A.s legal guardian, and that upon his release from prison he wanted custody of the child. His plan, following his release, was to live with Jamie L. and have her assist him with the baby. Petitioner had enrolled in a program for first-time felons who had drug and alcohol-related convictions. Petitioner stated he would enroll in a drug treatment program and a parenting education program. He also stated he would be released in February 2006 rather than June 2006 due to his good behavior and participation in required court-ordered programs.

The juvenile court found that petitioner was in compliance with the case plan, and directed DCFS to provide petitioner with reunification services.

Twelve-Month Status Review Hearing. A section 366.21, subdivision (f) hearing was held on April 6, 2006. DCFS reported that petitioner had been released to Phoenix House, which is a transitional/probationary/correctional home, and had maintained weekly phone contact and face-to-face contact with A. since his release from Tehachapi State Prison. According to Jamie L., the relationship between petitioner and A. was developing progressively and A. had warmed up to petitioner fairly quickly after petitioner was released to Phoenix House. Petitioner had completed parenting, anger management/stress reduction, narcotics and substance abuse programs.

The juvenile court found that petitioner was in compliance with the case plan and continued his reunification services. Petitioner was directed to telephone the social worker when he was released from his program. DCFS was given permission to allow petitioner to reside with A. and Jamie L.

Eighteen-Month Status Review Hearing. On August 22, 2006, the juvenile court held a section 366.22 hearing.

DCFS reported that petitioner wanted A. removed from Jamie L.s custody. On July 25, 2006, petitioner told the social worker that Jamie L. was suicidal, and that she had been driving A. with a suspended license. He also stated that she had no car insurance, no job, no money and no electric service. DCFS investigated and determined that the allegations were unfounded.

DCFS also reported that on July 14, 2006, petitioner had enrolled in drug counseling with a private therapist and had enrolled in individual counseling on September 29, 2006, and was attending once a week. Although petitioner missed a drug test in early September, he had tested negative for drugs three times in August, September and October. He was attending school and was in good standing with his probation officer. He continued to visit A., who recognized him and showed signs of bonding with him. A. did not want him to leave when the visits were over and cried when he left.

During the section 366.22 hearing, the juvenile court realized it might have previously denied petitioner reunification services. The court indicated that it would obtain copies of the reporters transcript from May 5, 2005, and June 16, 2005, to determine whether petitioner had been denied reunification services. The juvenile court ordered DCFS to prepare a report regarding petitioners compliance with the case plan and continued the section 366.22 hearing to October 26, 2006, for contest.

Contested 18-Month Status Review Hearing. On October 26, 2006, the juvenile court held a contested 366.22 hearing.

DCFS reported that on October 5, 2006, A. was removed from Jamie L.s home and placed in foster care. The removal occurred as a result of conflicts between petitioner, Jamie L. and Mykael W., the approved monitor. Petitioner was in favor of this move. The social worker believed he was serious about obtaining custody of A.

The juvenile court terminated O.s reunification services. With respect to petitioner, the court acknowledged it had not ordered reunification services for petitioner. However, the court decided that because petitioner mistakenly had been given reunification services, he should be provided with six months additional services. The court found petitioner was in compliance with the case plan and that DCFS had made reasonable efforts to reunify him with A. The court gave DCFS discretion to allow petitioner overnight unmonitored visits with A. The court continued the section 366.22 hearing to February 22, 2007. On that date the court continued the matter to March 26, 2007. On March 26, 2007, the court was presented with information indicating petitioner had failed to drug test as required. The court directed DCFS to prepare a supplemental report and continued the section 366.22 hearing to April 26, 2007.

Contested 18-Month Status Review Hearing. On June 21, 2007, the contested 366.22 hearing was finally held, 28 months after the dependency petition was filed. Reports prepared by DCFS were taken into evidence without objection.

DCFS reported that A., who remained in foster care, was showing signs of developmental delays and had been referred for a psychological evaluation. Petitioner had been spending 10 hours with A. each Wednesday and Saturday and A. did not want to leave petitioner at the end of the visits. Petitioner was still in college and was attending individual counseling. He had completed anger management and a narcotics anonymous program. As of the date of the hearing, petitioner had attended 14 out of 26 weeks of individual counseling.

Petitioner missed drug tests scheduled for September 6, 2006 and November 3, 2006. Then, on January 5, 2007, petitioner tested positive for marijuana. When confronted with the positive test, petitioner denied using marijuana and claimed he had not shown up for a drug test on that day. He told the social worker he wanted to re-test because marijuana stayed in a persons system for only 30 days. The social worker had petitioner drug tested again on January 16, 2007. The test was positive for marijuana. Again, petitioner denied using marijuana and claimed that the positive test was a result of his taking cold medication. On January 26, 2007, petitioner tested positive for marijuana a third time. At that point, the social worker changed petitioners visits with A. to monitored.

In another report, DCFS advised that petitioner had missed scheduled drug tests on February 9, 2007, February 20, 2007, March 6, 2007, and March 21, 2007. On June 21, 2007, DCFS reported that he had missed additional drug tests, and that on April 16, 2007, he had tested positive for marijuana and methylenedioxymethamphetamine (Ecstasy). On May 18, 2007, he tested positive for marijuana.

Petitioner presented DCFS with a statement dated April 13, 2007, from Dr. Edward Austin, saying that he had permission to use marijuana for the relief of symptoms associated with a medical disorder. The doctor opined that petitioners use of marijuana was for the purpose of improving his quality of life, not to produce euphoria or satisfy a craving. The letter said nothing about petitioners use of Ecstasy. Although the social worker attempted to contact the physician by telephone, he did not return her call. Petitioner told the social worker that although she could ask the doctor about his marijuana usage, he did not want his many other medical issues discussed.

A.s paternal grandmother had come forward, but she was not a placement possibility because her husband used marijuana for medical reasons. Jamie L. advised DCFS that she was willing to adopt A. Petitioners girlfriend, Mykael W., also stated she would adopt the child. But both of these placements would involve extensive contact with petitioner and DCFS was of the opinion that petitioners drug use constituted a risk to the child. The social worker felt A.s case should be forwarded to the placement and recruitment unit of DCFS.

Petitioner testified he had never lived with A. He had been released from prison on June 30, 2006. While in prison, he completed parenting, narcotics anonymous, alcoholics anonymous, anger management and stress reduction classes. Once out of prison, he had attended individual counseling for six months. He had completed one-on-one drug counseling in April 2007.

Petitioner said a doctor had prescribed marijuana for his bipolar condition and his anxiety attacks. When he had an anxiety attack, his breathing would become slow and he would shake and sometimes black out. He had had these attacks since he was 14 or 15 years old, around the same time he started using marijuana. He never smoked marijuana when he was with A. or in his home. He would go to a secluded area of the backyard. This happened about 4 or 5 times a month. He admitted he had not seen any doctor besides Dr. Austin about his medical condition since being released from prison. He paid for his own marijuana and for the visit with Dr. Austin, but he had not gone to any other doctors because he did not have free medical care. He had made preparations for having A. in his care. The child would have her own room and she was on a waiting list for day care.

Mykael W., petitioners girlfriend, testified she had lived with petitioner for 11 months, but she had known A. since she was two months old, because Jamie L. and, for a while O., had lived with her and she had helped take care of the child. In her opinion, petitioner was a very good parent and A. and petitioner had a very loving relationship.

The juvenile court found by a preponderance of the evidence that return of A. to petitioner would create a substantial risk of detriment to A.s physical and emotional well-being, DCFS had complied with the case plan by making reasonable efforts to enable A.s safe return home, A. could not be returned to the petitioners physical custody and there existed no substantial probability A. would be returned within six months. The court found that petitioner had only partially complied with the case plan. The court terminated reunification services and set a section 366.26 hearing. This petition followed.

II. CONTENTIONS

Petitioner contends there was insufficient evidence to establish that A. was at substantial risk of harm if returned to his care.

A. Standard of Review.

A determination that a child will suffer detriment if returned to the physical custody of the parent is reviewed on appeal for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] (In re N.S. (2002) 97 Cal.App.4th 167, 172.)

B. Risk of Detriment.

Although the law requires a court to focus on the reunification of the family until an order terminating parental rights is entered, the law also provides for an 18-month period in which to accomplish reunification. While there is a strong preference for reunification, the safety and well-being of the children is always a primary concern. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.) At the end of the 18-month period during which reunification services are provided, the court must make a decision whether to return the children to the parent or whether their well-being dictates that other placement for the children is in order. (Id. at p. 308.) If the court finds by a preponderance of the evidence that return of the children to the parent would create a substantial risk of detriment to their physical or emotional well-being, the court must develop a plan for the childrens placement. (Ibid.)

The social services department has the burden of establishing the detriment.

( 366.22, subd. (a); Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 399.)

In making its determination, the juvenile court must review and consider reports prepared by the social worker and any child advocate appointed, the efforts or progress, or both, demonstrated by the parent and the extent to which the parent cooperated and availed him or herself of services provided. A parent must do more than simply comply with the technical requirements of the reunification plan. The juvenile court must also consider the progress the parent has made towards eliminating the conditions leading to the out-of-home placement. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139.) The failure of a parent to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.22, subd. (a).)

The juvenile court must specify the factual basis for its conclusion that return would be detrimental to the child. ( 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(3).)

This record contains ample evidence to support the juvenile courts finding that it would create a substantial risk of detriment to A.s physical and emotional well-being should she be placed with petitioner. As of the date of the section 366.22 hearing, petitioner had failed to complete the required individual counseling component of the case plan, and had tested positive for drugs on several occasions.

Petitioner suggests the juvenile court should have disregarded his positive tests for marijuana because he had a prescription for the drug. However, the juvenile court did not find Dr. Austins letter credible, and it is the trial courts role to assess the credibility of witnesses and to weigh the evidence in resolving conflicts. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) We have no such power. (Ibid.) Moreover, the record does not support an inference that petitioner took marijuana because a physician prescribed it. After his release from prison, while he was having 10-hour unmonitored visits with A., he tested positive for marijuana five times. When first confronted with the positive tests, he did not say he was using marijuana for medicinal purposes. He claimed the tests were inaccurate or the result of cold medication. Petitioner did not suggest that he was taking marijuana for medicinal purposes until April 2007.

Petitioner asserts that there was no evidence presented to the juvenile court suggesting that he has been anything but a law-abiding citizen since his release from prison. Petitioners April 16, 2007 positive test for Ecstasy suggests otherwise. Thus, even if we were inclined to disregard petitioners positive tests for marijuana, we would still be faced with petitioners positive test for a recreational street drug, a test which suggests that he has recently engaged in illegal criminal activities.

In addition, as the juvenile court noted, petitioners disabilities, such as becoming so stressed he blacks out, presented a danger to A.

III. DISPOSITION

The juvenile courts order terminating petitioners reunification services and setting a section 366.26 hearing is supported by substantial evidence. Accordingly, the order to show cause is discharged and the petition for extraordinary writ of mandate is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_______________________, P. J.

BOREN

We concur:

______________________, J. _______________________, J.

DOI TODD ASHMANN-GERST

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

^[2] O.D. is not a party to this petition.