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J.S. v. Superior CA4/3

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J.S. v. Superior CA4/3
By
03/12/18

Filed 2/27/18 J.S. v. Superior CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


J.S.,

Petitioner;

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055676

(Super. Ct. Nos. 16DP0792, 16DP0793, 16DP0794, 16DP0795)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied.
Donna Chirco for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
No appearance for Minors.
* * *
INTRODUCTION
J.S. (Father) is the father of now 13-year-old P.S., 11-year-old A.S, six-year-old H.S., and five-year-old L.S. (collectively, the children). In August 2016, the children were taken into protective custody. The juvenile court held a 12-month review hearing after which the court found that the return of the children to Father would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being within the meaning of section 366.21, subdivision (f) of the Welfare and Institutions Code. (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) The court terminated reunification services and set the matter for a permanency hearing under section 366.26 for March 7, 2018.
Father filed a petition for a writ of mandate challenging the court’s order. He argues the juvenile court erred by finding that the return of the children to Father would create a substantial risk of harm to them. We deny the writ petition. Substantial evidence, including Father’s testimony admitting he did not submit to a psychiatric evaluation under Evidence Code section 730 or otherwise complete his case plan, supported the court’s finding. Given Father’s refusal to participate in reunification services, the court did not err by terminating such services.

BACKGROUND
I.
THE JUVENILE COURT SUSTAINS THE JUVENILE DEPENDENCY PETITION
In July 2016, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition (the dependency petition) on behalf of the children, alleging the children came within the jurisdiction of the juvenile court under section 300, subdivisions (b) (failure to protect) and (j) (abuse of a sibling). The dependency petition summarized prior dependency proceedings involving this family as follows.
In October 2012, the juvenile court sustained a juvenile dependency petition alleging the children came within section 300, subdivision (b) (failure to protect). The prior dependency petition had alleged that after the children’s mother H.G. (Mother) had given birth to L.S., both Mother and L.S. tested positive for amphetamine and methamphetamine. Mother had admitted using methamphetamine during her pregnancy, having an unresolved substance abuse history, and having been under the influence of illegal drugs and alcohol while the sole caretaker of the children. The prior dependency petition alleged Father had committed acts of domestic violence in the children’s presence including choking Mother on at least three occasions, punching holes in doors and walls, throwing objects, calling Mother “bad names,” using profanity, yelling and screaming, and, on at least two occasions, threatening that if Mother were pregnant, he would kill her and then himself. Father was provided family maintenance services. In December 2013, juvenile dependency jurisdiction over the children was terminated and Father was granted custody of them; Mother was provided weekly visitation monitored by a third party.
The dependency petition filed in 2016 alleged that since the termination of the prior juvenile dependency proceedings, Father allowed Mother, who had not completed court-ordered case plan services, to live with Father and the children and had allowed Mother to act as sole caretaker of the children. SSA had made multiple attempts to visit Mother at the home, including by way of “a home entry welfare check warrant” with law enforcement assistance, but no one responded at the home even though cars were observed in the driveway. Father had not responded to attempts by SSA to contact him.
The dependency petition further alleged that in June 2016, Mother gave birth to a baby and both tested positive for the presence of methamphetamine. The baby, who is not a subject of the instant dependency proceedings, was detained. The dependency petition alleged Mother continued to have an unresolved substance abuse problem that was not limited to the use of methamphetamine and marijuana, and also had unresolved mental health issues. Father also had a history of substance abuse but he reported he is “clean now.”
In October 2016, the juvenile court sustained the dependency petition. In February 2017, the court ordered that reunification services be provided to Father and Mother. As to Father, the court ordered that he submit to a psychiatric evaluation under Evidence Code section 730, general counseling, anger management training, parenting education, substance abuse testing for 30 days, and, if he had a positive test, an outpatient substance abuse program and a 12-step program. The court extended the offer of reunification services to Father and Mother in August 2017.
II.
AFTER FATHER FAILS TO COOPERATE WITH SSA OR PARTICIPATE IN CASE PLAN SERVICES, THE JUVENILE COURT FINDS THAT RETURN OF THE CHILDREN TO FATHER’S CARE POSED A SUBSTANTIAL RISK OF HARM TO THEM AND SETS A PERMANENCY HEARING; FATHER FILES A PETITION FOR A WRIT OF MANDATE.
SSA filed a 12-month status review report and two addendum reports in advance of the 12-month review hearing. SSA recommended that the juvenile court find that return of the children to Father’s care posed a substantial risk of harm to them, terminate reunification services, and set a permanency hearing. The assigned social worker reported that Father had not cooperated with social workers and/or service providers in their attempts to initiate the court-ordered services. He remained “unavailable or unwilling” to participate in such services. He also refused to review or discuss court-approved case plan services or provide proof of program participation or completion. The assigned social worker reported that she believed Father continued to reside with Mother. The assigned social worker reported that Father had visited the children, but the visits had become “increasingly concerning due to his erratic behaviors.”
At the 12-month review hearing in October and November 2017, Father testified he wanted the children returned to him but admitted he did not complete his case plan components. He testified that he did not participate in an Evidence Code section 730 evaluation and never called the evaluator to set up an appointment. He did not submit to 30 days of substance abuse testing; he stated he submitted to three random tests but after that, he “just couldn’t do it.” Citing his busy schedule, he did not attend an approved parenting class, anger management class or complete therapy.
Father testified that he had allowed Mother to live in his home and care for the children. He stated that he now understood Mother posed a risk to the children. He stated that Mother no longer resided in the home as of a few weeks earlier.
Following the presentation of evidence, the juvenile court found that the return of the children to Father or Mother would create substantial risk of detriment to the children’s safety, protection, or physical or emotional well-being and also found that reasonable services had been provided or offered to the parents. The court stated that while Father’s and Mother’s failure to make substantive progress toward alleviating the issues that led to the removal of the children was “prima facie evidence that the children cannot safely be returned to the home,” that was only “the beginning and certainly not the end of the inquiry.” The court found that Father was unable to isolate himself from Mother and meaningfully protect the children from her. Although Mother was an inappropriate caretaker of the children, Father left the children in her care in addition to allowing her to reside in the home with them. The court found Father failed to participate in services on even a “rudimentary” level. The court stated: “Father has indicated his inability to engage in the process on any level,” noting Father’s “profound reluctance . . . to participate in these services.” The court further found “[t]he most glaring, the most regrettable aspect of [his] failure to comply with the service plan [the] court would believe and find to be Father’s failure to participate in the [Evidence Code section] 730 evaluation.”
As the court explained its findings, Father told the juvenile court judge that the judge was “insane” and Father stated he did not “need to hear this crap anymore.” He also told the juvenile court judge that the judge was a “bad person” and “the devil” and left the courtroom.
The juvenile court thereafter observed: “Father’s mood swings are dramatic. He is volatile.” The court expressed concern that some of Father’s statements suggest a “potential for self-injurious conduct and also there would be a corollary concern for [the] safety of the children physically and emotionally” necessitating an Evidence Code section 730 evaluation for which the court continued to authorize funding along with counseling and visitation with the children.
The court terminated reunification services for Father and Mother and set a permanency hearing under section 366.26. Father filed a petition for a writ of mandate seeking to set aside the court’s orders at the 12-month review hearing.

DISCUSSION
At the 12-month review hearing, the court must return the child to the physical custody of his or her parent or legal guardian “unless the court finds, by a preponderance of the evidence, that return of the child . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (f).) “The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f)(1)(B).) We determine whether substantial evidence supported the juvenile court’s findings. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341; Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Substantial evidence supported the court’s finding that return of the children to Father would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children. Father did not participate regularly or make substantive progress in his case plan. The court was most concerned that Father failed to submit to a psychiatric examination under Evidence Code section 730. The court’s concern about Father’s omission on that point was underscored by Father’s volatile outburst during the 12-month review hearing. Father failed to communicate with the assigned social worker or make arrangements to work toward substantially complying with his case plan. Substantial evidence showed Father was unable to exclude Mother from the family home or otherwise protect the children from her. The juvenile court did not err by refusing to return the children to Father’s care.
In his writ petition, Father provides no argument or citation to legal authority whether the juvenile court erred by terminating reunification services or failing to grant family maintenance services. Yet, in his prayer (and reiterated at the conclusion of the writ petition), Father states he should have been granted additional family reunification services or family maintenance services.
Father does not contend he was not provided reasonable services in the first instance and substantial evidence showed he did not cooperate with or substantially comply with his case plan, as discussed ante. At the 12-month review hearing, the juvenile court observed: “[T]here are significant equivocations upon willingness to participate in services and that those qualifications and equivocations are such that it ties back in the issues regarding the [Evidence Code section] 730 evaluation, that would seem to have been the necessary core to address the root causes of these issues, and that Father . . . was not willing to participate in that process and upon further examination on his prospective willingness to participate in services that may be recommended, which he might disagree, was equivocal, and equivocal to the point where the court was persuaded there would be a repetition of Father’s articulated willingness but factual noncompliance with the services ordered.” The court’s findings are supported by the record. The court did not err by terminating reunification services.

DISPOSITION
The petition for a writ of mandate is denied.



FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.





Description J.S. (Father) is the father of now 13-year-old P.S., 11-year-old A.S, six-year-old H.S., and five-year-old L.S. (collectively, the children). In August 2016, the children were taken into protective custody. The juvenile court held a 12-month review hearing after which the court found that the return of the children to Father would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being within the meaning of section 366.21, subdivision (f) of the Welfare and Institutions Code. (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) The court terminated reunification services and set the matter for a permanency hearing under section 366.26 for March 7, 2018.
Father filed a petition for a writ of mandate challenging the court’s order. He argues the juvenile court erred by finding that the return of the children to Father would create a substantial risk of harm to them.
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