Joseph R. v. Superior Court

Filed 6/16/08 Joseph R. v. Superior Court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

Joseph R. (petitioner), the father of the minors, seeks an extraordinary writ to vacate orders of the juvenile court entered at the 18-month review hearing terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] (Cal. Rules of Court, rule 8.452.) Petitioner contends he was not provided reasonable reunification services. He also claims the juvenile court erred by finding he did not regularly participate and make substantive progress in court-ordered services and that return of the minors would create a substantial risk of detriment. Disagreeing with these contentions, we shall deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2006, the Shasta County Department of Social Services (DSS) filed a petition concerning the minors -- Joseph, Jr., Nicole, and Peter (ages six years, two years, and three months, respectively) -- which, as later amended, alleged that petitioner and the minors mother had problems with anger control and domestic violence, substance abuse, and mental health.^[2] It was also alleged there was a gas leak in the home that they were aware of and that placed the minors at risk.

On the date the minors were detained, petitioner had been arrested for domestic violence against the mother, who also was arrested for child endangerment and public intoxication. According to a sheriffs report attached to the detention report, petitioner explained he had been at a friends home when Joseph, Jr., came and informed him that the mother has her pants down at home. When petitioner returned home, he discovered an individual named Jim M[.] performing oral sex on the mother in the living room. Jim later corroborated petitioners account in this regard.

The participants versions vary somewhat as to what occurred next. The mother, who was visibly intoxicated and had swelling to her eye and upper lip, reported that petitioner struck Jim in the face several times with his fists when Jim tried to step in between her and petitioner as they yelled at each other. She stated that petitioner also struck her once in the face, and that her swollen eye had occurred when petitioner struck her two or three weeks earlier. Petitioner denied assaulting the mother but admitted punching and kicking Jim after pull[ing] [him] off the mother. Jim remembered being punched in the face one time, which sen[t] him to the floor, and the next thing he remembered, he was sitting on the front porch of the residence, bleeding from his face and head.

During the incident, three-month-old Peter was on a nearby couch. Petitioner said he had been drinking with the mother and Jim earlier in the day. According to Jim, petitioner and the mother had prior domestic violence problems.

The sheriffs deputy investigating the incident detected the strong odor of natural gas in the residence, and both parents admitted they knew there was a gas leak. According to the sheriffs report, the gas fumes were so thick in the residence that it [wa]s possible [the minors] could have died from exposure to the fumes if they had been left in the home all night. In addition, it was determined that Joseph, Jr., and Nicole required extensive dental treatment. It was also observed that Joseph, Jr., appeared to assume a parental role in the family.

Petitioner denied any responsibility for the minors being removed. During an assessment by Thomas R. Wright, a licensed clinical social worker, petitioner described the minors mother as a raging alcoholic. He denied initiating physical abuse against her but stated that, when she attacked him, he held her, shoved her and struck her open handed on the back of the head. According to petitioner, the mother had tried to get him in trouble by trying to hire a neighbor to beat her up so that she c[ould] frame him and had tried to hire people to beat him up. Petitioner showed no insight as to why he remained in the relationship with the mother.

Petitioner admitted drinking two beers a week and, rarely, taking prescription Vicodin for a back injury. A separate drug and alcohol evaluation did not recommend treatment for petitioner unless he was unable to abstain from the use of alcohol and drugs.

Wright determined that petitioner was in the problem risk range for truthfulness regarding domestic violence, which meant that [d]enial and resistance to further self-inquiry and self-report can be anticipated. He also was found to be in the medium risk area for drugs and alcohol, because [s]ome indicators of abuse [we]re evident but an established pattern of dependency [wa]s not evident. Wright noted petitioner was not coping [e]ffectively with stress and that he present[ed] as depressed, anxious and confused. Wrights assessment concluded [i]t is clear that [petitioner] has failed to create a safe environment for his child [sic] and that the indicators of deception . . . may either be due to attempting to deceive the court, serious current mental health problems, substance abuse issues or extreme relationship dependency. Wright recommended that petitioner receive a full psychological evaluation, therapy focusing on mental health, anger management and dependency issues, random drug testing, and a parenting class.

Petitioner submitted on the social workers report, and the court sustained the allegations in the amended petition. The assessment section of petitioners case plan identified several problems requiring intervention, including lack of anger control, inadequate parenting skills, mental health problems, poor impulse control, and co-dependant behavior. Petitioners case plan included a requirement for a psychological evaluation.

Petitioner did not comply with a psychological evaluation until four months after the dispositional hearing and did not meet with the social worker for the first time until a month after that. The psychological evaluation recommended individual therapy focusing on petitioners lack of insight and assertiveness, as well as his deficit in coping skills. The evaluation noted that petitioner had a ways to go before he translates information into practice, and that it was doubtful that the lessons [petitioner] reports that he learned from parenting classes will translate into a change in his behavior without significant practice and repetition.

A bonding assessment found that, although petitioner had a strong bond with the minors, he did not appear ready to assume custody of them. He had not looked for work, had no support network and was preoccupied with his relationship with the minors mother, in whose mobile home he continued to reside even though it was not suitable for the minors. Although petitioner consistently attended visits, he had difficulty incorporating information from the parenting classes and appropriately supervising the minors.

Initially, DSS recommended termination of petitioners services at the six-month review. However, at the hearing in May 2007, it was noted that petitioner had begun counseling and filed for divorce, and DSS recommended continuing services for him. The minors mother had not been able to stay sober or remain in a program, and her reunification services were terminated.

Petitioners updated case plan required him to continue with therapy, utilize information from parenting classes during visits, maintain adequate housing, establish financial means to support the family and demonstrate an ability to respond to the minors cues and set age-appropriate limits.

By the time of the 12-month review, petitioner had continued to attend therapy and his depression had improved, but he became overwhelmed and tearful when discussing the responsibility of parenting. During visits, petitioner was slow to correct situations that were dangerous to the minors, and he often was unable to discipline and manage all of them. He did not seem to be able to integrate parenting information, and was either resistant to instruction or was not able to correct his parenting. Furthermore, petitioner had not moved from the mobile home, which continued to have unsafe conditions, and his plan for supporting the family was to apply for aid. In sum, although petitioner had followed through on most of his case plan, he remained resistant to change, and the social worker felt that services had not assisted him in being able to meet the minors needs.

While the 12-month review hearing was pending, petitioner was arrested for public intoxication after he bec[a]me intoxicated to the point of passing out on the street . . . . Petitioner maintained the incident resulted when he took two muscle relaxants because he had run out of Vicodin. The sheriffs report stated that an alcoholic beverage [was] emitting from [petitioners] person and he could barely speak, slurred his words, and could not stand on his own. According to the arresting officer, petitioner said he had just left a bar. In a subsequent report, the social worker noted that petitioner had minimize[d] his involvement with alcohol, and ha[d] often stated . . . that he does not drink because he takes a prescription medication.

Following the incident, the decision was made that petitioners visits would be fully supervised, and when he was informed of this by a visit supervisor and told to discuss his objections with the social worker, he replied in the presence of the minors that he would kick [the social workers] ass. Petitioner later apologized to the social worker. In addition, although petitioner had been instructed numerous times not to discuss placement with the minors at visits, he continued to tell them that they were coming home.

The matter was continued to January 2008, at which time DSS informed the court that it was re-referring petitioner for a drug and alcohol assessment and an updated parenting assessment. The review hearing was continued for two months. Subsequently, a new case plan was signed by petitioner and the social worker, which additionally required petitioner to be reassessed for anger management needs and to participate in another parenting class.

Petitioner continued to have problems monitoring the minors during visits. He submitted to an updated evaluation, which found that his issues with depression had improved but his parenting skills had remained the same. Furthermore, although petitioner had severed ties with the minors mother, it was unclear whether he had progressed in addressing his codependency issues. The evaluator also was concerned that petitioner lacked understanding and exhibited defensiveness regarding the gravity of threatening the social worker. The evaluator concluded that petitioner seems to be essentially the same person he was one year ago and that he had not gained significantly enhanced insight.

Petitioner also was reassessed for drug and alcohol abuse, but the assessment could not be completed because petitioner refused to sign a release of information for the evaluator to assess his prescription drug use. DSS recommended termination of petitioners services.

At the review hearing, which occurred in March 2008, petitioner testified that he had moved into another mobile home, which he had refurbished with new carpeting and appliances. Petitioner explained that he was refurbishing trailers for the manager of the mobile home park, who then put the homes up for sale. He did not believe that the unit in which he planned to live with the minors was for sale, but if it was sold, he would go get another trailer.

Petitioner said that he attempted several times to get reassessed for anger management after the last hearing, but was unable to get DSS to send a referral to the assessment facility. He testified that he had completed a 16-session anger management program and that he had tempered down a little bit as a result of the classes, although he didnt think [he] had a temper. He said he had learned to be a little more passive in a situation like that [presumably, finding his wife with another man] but that he would probably react the same way if it happened again.

With regard to his arrest for public intoxication, petitioner explained that he had taken four times the prescribed dosage of his muscle relaxant medication because he was having back pain and had not renewed his prescription for Vicodin in time.^[3] Petitioner stated that he then went to the social security office, after which he went to a bar and had a beer because [he] missed the bus and was killing time. He testified this was the only time he had any alcohol since the minors were removed. Petitioner stated that he had had a substance abuse problem 17 years ago but that he no longer had a problem.

The juvenile court found that return of the minors to petitioners care would create a substantial risk of detriment, concluding that, although petitioner had participated in services, he had failed to make substantive progress. The court observed that petitioner continue[d] to show significant lapses in judgment with respect to anger management, as exemplified by his lack of control in the presence of the minors in response to learning his visits would be supervised and his subsequent minimiz[ing] of this behavior. The court also pointed to petitioners testimony that he did not believe he had a temper and that, despite his participation in services, he would probably react the same way if confronted with the situation that led to the dependency proceedings as indicative that he had not benefited from services for his anger issues. The court was also concerned about petitioners failure to cooperate with DSS to assess whether he was dependent on prescription drugs, which was suggested by his long-term use of pain medication and his arrest for public intoxication while using such medication. In addition, the court considered the evaluators opinion that petitioners parenting skills had not improved and that he was unlikely to handle frustrating aspects of parenting effectively with his present level of functioning. Finally, the court expressed concern about petitioners unstable housing situation and the condition of his home.

The court terminated petitioners reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors.

DISCUSSION

I

Petitioner claims there was insufficient evidence he was offered reasonable services because DSS did not make a referral to have his anger issues reassessed in violation of the court order and the requirements of the revised reunification plan. We detect no error.

Initially, we note that, as far as the record before us reveals, the referral for reassessment of anger issues was not mentioned at the court hearing and was not ordered by the court. Rather, it appears to have been added to the case plan as an afterthought. Thus, no court order was violated.

Furthermore, petitioner participated in an anger management program during the reunification period and had been provided services for more than 18 months. It is difficult to conceive how an anger assessment at this late stage in the proceedings might possibly have affected the outcome of the review hearing.

In any event, a party may not appeal a finding in the absence of an adverse order resulting from that finding. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1154.) The finding that petitioner had been provided reasonable services did not lead to an adverse order. Although the court must determine at the 18-month review hearing whether reasonable services have been offered ( 366.22, subd. (a)), the finding at this juncture does not affect whether a section 366.26 hearing should be set.^[4] The finding becomes relevant at the section 366.26 hearing only if [a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided, in which case the court may not terminate parental rights. ( 366.26, subd. (c)(2)(A).) As the juvenile court, here, had made previous findings that reasonable services had been provided to petitioner, the finding in question did not lead to an adverse order and, therefore, is not appealable.

II

Next, petitioner argues that there was not substantial evidence he failed to regularly participate in services. But the juvenile court did not make a finding to this effect. To the contrary, in its oral ruling, the court found that petitioner had regularly participated in services but that he failed to make substantive progress. And, consistent with this ruling, the courts written finding stated the parents failed to benefit from services or regularly participate in a [c]ourt-ordered treatment program. (Italics added.) The courts use of the disjunctive or indicates alternative findings.

Thus, there is no merit to petitioners claim in this regard.

III

Petitioner claims that there was insufficient evidence he failed to make substantive progress in court-ordered treatment. Because this finding provides prima facie evidence that return of the child to parental custody would create a substantial risk of detriment ( 366.22, subd. (a)), the juvenile courts finding in this regard led to an adverse order and is appealable. (Melinda K. v. Superior Court, supra, 116 Cal.App.4th at p. 1154.) Nonetheless, we disagree with petitioner that there was insufficient evidence to support the courts finding.

Petitioner argues that the juvenile courts bases for its finding -- his arrest for public intoxication and his threat against the social worker -- were isolated incidents and did not provide substantial evidence of a failure to make substantive progress. However, it was the domestic violence incident (as well as the mothers alcoholism) that led to the dependency proceedings. And while petitioners initial violent conduct occurred under highly provoking circumstances, his subsequent threat against the social worker, made in the minors presence, disclosed that he remained unable to control his anger under much less volatile circumstances and to the minors detriment. Petitioners statements at the review hearing that he did not think he had a temper and that he would probably do the same thing if confronted with a situation similar to what had occurred with the mother corroborated the evaluators conclusion that services had not assisted petitioner in gaining insight into his conduct.

The juvenile court listed numerous other concerns that still lingered with regard to whether petitioner had made substantive progress from the services he was provided, including his failure to cooperate with an assessment of his prescription drug use, which was of particular concern in light of his arrest for public intoxication. Other concerns mentioned by the court were petitioners unstable and unsafe housing situation, his inability to improve his parenting skills, and his lack of insight with regard to these concerns and his anger issues, which the court found rendered it unlikely he would be able to handle frustrating aspects of parenting effectively

. . . .

There was substantial evidence to support the courts conclusion that petitioner had not made substantive progress in all of these areas, despite the fact that he had been offered services to address them for well over the 18-month limit for reunification efforts. Accordingly, we reject petitioners claim.

IV

Finally, petitioner maintains there was insufficient evidence to support the juvenile courts finding that return of the minors would create a substantial risk of detriment. Again, we disagree.

At the 18-month review hearing, the child must be returned to the parents physical custody unless return would create a substantial risk of detriment to the childs safety or well-being. ( 366.22, subd. (a).) A parents failure to regularly participate and make substantive progress in court-ordered services is prima facie evidence of such detriment. (Ibid.) While simply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court . . . it is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) The court must also consider the parents progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated. (Ibid.)

Petitioners argument consists of a recitation of his testimony at the review hearing regarding his relationship with the minors, the termination of his marriage, his housing and work situation, and his record of clean drug tests. He does not address the juvenile courts concerns regarding his failure to make progress with anger issues and his failure to cooperate with an assessment of his prescription drug use, or the persistent problems with his parenting skills. It was petitioners failure to make progress in these areas that led the court to the conclusion that returning the minors would create a substantial risk of detriment.

The juvenile court was warranted in concluding that petitioners testimony did not rebut the prima facie showing, based on petitioners failure to make substantive progress in services, that return of the minors to his care would create a substantial risk of detriment to them. We reject his claim to the contrary.

DISPOSITION

The writ petition is denied.

BLEASE , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

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^[1] Further section references are to the Welfare and Institutions Code.

^[2] Initially, another individual was listed on the petition as Peters biological father, but later testing disproved his paternity. Petitioner, who was married to the minors mother when Peter was born, was listed as his presumed father.

^[3] Petitioner later testified that his prescription was for Hydrocodone, not Vicodin.

^[4] In contrast, at a six- or 12-month review hearing, a finding that reasonable services have not been offered requires that additional services be offered. ( 366.21, subd. (e), 366.21, subd. (g)(1))).