M.G. v. Super.Ct.
Filed 2/4/13 M.G. v. Super.Ct. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
M.G.,
Petitioner,
v.
THE SUPERIOR
COURT OF SANTA
CLARA COUNTY,
Respondent,
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Real Party in
Interest.
H039067
(Santa Clara
County
Super. Ct.
No. JD020740)
INTRODUCTION
M.G. is the
father of M., the child at issue in this juvenile
dependency case. He has filed a
petition for extraordinary writ seeking review of the juvenile court’s orders
Welfare and Institutions Code section 366.26
permanency planning hearing. A
self-represented litigant, father states in his writ petition that he believes
that he has done everything he has been asked to do and requests further
reunification services.
For the
reasons stated below, we find that father has not shown that the juvenile
court’s findings and orders are not supported by substantial evidence and we
will therefore deny the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Section
300 Petition
On July 29, 2011, the
Children’s Services (the Department) filed a petition under section 300,
subdivision (b) [failure to protect] and (j) [abuse of a sibling] alleging that
M., age seven months, came within the jurisdiction of the juvenile court.
The
petition further alleged that M. was at significant risk in the care of her
mother and father due to the mother’s developmental delays and mental health
problems, as well as both parents’ inability to adequately meet the child’s
basic needs and provide adequate supervision for M. and her three
siblings. Previously, all three siblings
had been declared dependents of the court.
in-home assistance from the San Andreas Regional Center every day, she was
unable to maintain a sanitary home, provide regular meals, or change M.’s
diaper without being reminded to do so.
Additionally, she had dropped M. on her face.
Regarding
abuse of a sibling, the petition alleged that the family home was unsanitary
and unsafe for children, with the presence of “old food with larvae on it which
both parents refuse to throw out, buckets of standing water, an excessive
amount of cleaning chemicals and exposed electrical cords, all of which are
accessible to the child and her siblings.â€
M. and her siblings had also been injured due to the lack of parental
supervision. The children played
unsupervised in front of the house, which was on a busy street, and M.’s
three-year-old brother had pushed M. in her stroller into oncoming traffic.
The
petition also noted that the mother’s parental rights to her three older
children with a different father were terminated during juvenile dependency
proceedings in 2000 due to the mother’s mental health issues, neglect of the
children’s basic needs, and inadequate supervision of the children.
B. Detention
Hearing
At the
detention hearing held on August 3, 2011, the juvenile court found that
(1) M.G. was the presumed father of M.; (2) continuance in the parental
home would be contrary to the child’s welfare; and (3) continued detention was
necessary because removal from the parents’ custody was necessary to protect the
child’s physical or emotional health.
The court therefore determined that a prima facie showing had been made
that the child came within section 300.
The court
ordered that the parents be provided with supervised visitation, with a minimum
of two visits per week for a minimum of one hour each visit.
C.
The
Department filed a jurisdiction/disposition report on November 21, 2011. The report stated that M.’s three siblings
were placed in protective custody in 2009 and M. was born while the parents
were receiving extensive family reunification and family maintenance
services. The Department found that the
mother, who was the main caretaker for the child, did not provide proper care
for M. although the parents were receiving 12 hours of assistance every day
from the San Andreas Regional Center.
The report
also stated that the family’s living situation was unsafe because they were
living in a warehouse that was unsanitary due to the mother’s hoarding and the
presence of unsafe items, including old food with larvae that the parents
refused to throw out, buckets of standing water, excessive amounts of cleaning
chemicals, exposed electrical cords, soiled clothes on beds, dirty diapers, and
garbage throughout the house.
Due to the
lack of supervision, M. had suffered at least three falls, from her car seat on
the floor and from a bed. The mother had
also allowed M.’s three-year-old brother to push her stroller into oncoming
traffic, where M. was almost hit by a truck.
It appeared that the parents did not want to follow the safety
instructions that they had received from the social worker and the in-home
assistant.
The father
focused on the mother as the problem and was unable to explain why he did not
get more involved in caring for the children, even after attending parenting
classes and receiving other services to improve his parenting skills. Both parents lacked effective parenting
skills, which continued to place the children at risk of harm.
In the
addendum report filed November 21, 2011, the Department reported that M. had
been placed in a foster home with her siblings and was doing very well. The Department recommended that the mother
not be provided reunification services because she had been unable to learn
basic parenting skills to keep M. safe.
However, the Department recommended that the father receive family
reunification services with respect to M. and the social worker was “hopeful
that the father is able to comply with services and reunify with the child.â€
D. Jurisdiction
Hearing
A contested
hearing on jurisdiction and disposition was held on November 21, 2011 and
December 2, 2011. The December 2, 2011
order states that the juvenile court found allegations of the amended section
300 petition to be true and declared M. a dependent of the court. Additionally, the court ordered that M.’s
placement in the foster home continue; only the father was to receive family
reunification services; and both parents were to have weekly supervised
visitation for two hours.
E. Interim
Status Reviews
The first interim review of
family reunification took place on January 31, 2012. The Department stated in its first interim
review report, filed on January 31, 2012, that M. was doing well with her
caregivers, the father was engaging in his case plan, and his weekly drug tests
had been negative. The juvenile court
ordered that all previous orders remain in effect.
In
conjunction with the six-month interim review held on July 10, 2012, the
Department submitted its status review report.
According to the report, the father was working full time in his ice
cream shop and continuing to live in the warehouse from which his three older
children had been removed due to unsafe and unsanitary conditions. The social worker had conducted home visits
and observed the that the warehouse was cluttered with clothes, toys and
garbage; the bathroom was dirty and consisted only of a toilet and sink, with
no hot water; there were openings in the ceiling to the outside; the side door
had no lock; electricity was provided by electrical cords run from the father’s
business next door; the kitchen was dirty and messy, with rotten food; and the
bedroom had a king-sized bed surrounded by bags of toys and clothing.
The
Department also stated in its six-month status review report that the father
had continued to have weekly negative drug tests, had completed the parent
orientation class, and had consistently visited M. However, the father was not interactive with
M. during the visits and tended to feed her rather than play with her. Regarding the warehouse situation, the father
continued to live with the mother in the warehouse and did not intend to look
for an appropriate home until M. was returned to him.
The
Department remained concerned by the father’s inability to provide a safe home
for M., the possibility that M. would be returned to the mother’s care if she
were to be returned to the father, and his failure to demonstrate that he
wanted to actively parent M. Therefore,
the Department recommended that the father’s family reunification services be
terminated and a permanency planning hearing under section 366.26 be set.
Two
addendum reports were filed by the Department that included recent photographs
of the warehouse where the father lived, and which showed that the warehouse
remained unsafe and unsanitary. The
Department noted that the father had failed to find adequate housing for nearly
one year and had also failed to show that he could meet M.’s basic needs.
In its
order after hearing on contested six-month status review, filed on July 26,
2012, the juvenile court ordered that M. continue as a dependent child of the
court and the father continue to receive family reunification services. The court also ordered the father to
participate in and successfully complete counseling regarding relationship
issues, weekly drug testing, a 12-step program, a relapse prevention plan, and
to cooperate with Family Wellness Court partners. The father was allowed supervised visitation
of a minimum of two visits per week for two hours each visit.
F. 12-Month
Status Review
1. The Status Review Report
The
Department filed its 12-month status review report on November 27, 2012. Since the last status review, the father had
moved in and out of a studio apartment and was again living in the warehouse,
which remained unsafe and unsanitary. He
continued to advise the social worker that he would have adequate housing for
M. once she was returned to him.
The
Department also reported that the father had complied with weekly drug testing,
with the exception of missing one week; was attending a weekly cognitive
behavior therapy group; had received services from the Gardner’s Family
Enrichment Program; had failed to attend an appointment for a transitional
housing unit; and had not engaged in the mental health services to which he had
been referred by Family Wellness Court.
The father had attended supervised visitation of M., where he continued
to offer her food from the beginning to the end of the visit.
Due to the
father’s procrastination in finding adequate housing and his inability to meet
M.’s basic needs, the Department determined that it was not likely that the
father would reunite with M. if he were given additional time. The Department therefore recommended that
family reunification services to the father be terminated and a
section 366.26 permanency planning hearing be set.
In an
addendum report dated September 25, 2012, the Department provided an update on
the father’s housing situation. In
September 2012, the father had moved into a transitional housing unit for
fathers who are in the process of reunifying with their children. The father was able to live in the
transitional housing unit for six months and would lose the housing if he lost
family wellness services.
M.’s mother
continued to live in the warehouse. The
social worker visited the warehouse in September 2012 and found that it
continued to be cluttered, unsafe, and unsanitary. The mother informed the social worker that
she does not have time to clean when she comes home from work and the father
tells her not to throw anything away.
Although the father had told the mother that he wants to clean the
warehouse and make it livable, he did not help with cleanup. The mother intended to continue her
relationship with the father.
In a second
addendum report, dated October 24, 2012, the Department reported on the outcome
of the father’s participation in 12 months of reunification services and
supervised visitation with M. The father
had displayed limited parenting skills, including continuing to feed M. fruits
and juices that made her sick. He had
also given her expired food and had failed to properly change her diaper
without reminders. The father also
needed to be reminded to watch M., who was now an active toddler, during
visitation. The Department found that M.
would be at risk of harm if placed with the father, not only due to his limited
parenting skills but also because he had failed to maintain a safe and sanitary
home. The Department believed that it
was “highly probable†that the father would use the mother as a caretaker if M.
was returned to him, although the mother was unable to adequately identify risk
factors and supervise children.
2. The Contested Hearing
The contested 12-month hearing
was held on November 27, 2012. The
witnesses who testified at the hearing included the social worker for the
family and the father.
The social
worker testified that M. was removed from the father’s care in July 2011
due to the unsafe and unsanitary conditions in the home, the lack of
supervision, and the continued hoarding problems. The reunification services offered to the
father included parent orientation, basic parenting class, Family Wellness
Court, drug testing, a 12-step program with a sponsor, the family enrichment
program (monitoring of parenting skills), bus passes, and support by the
Department. The father had not
participated in the individual counseling ordered by the Family Wellness Court.
In the
social worker’s opinion, M. cannot be returned safely to her father because he
has not addressed the risk factors that brought M. to the attention of the
Department, including his lack of parenting skills; his continued relationship
with the mother and the risk that M. would be returned to the mother’s care
while he was at work; and the continued unsafe and unsanitary condition of the
warehouse. The father also believed that
it was the mother’s fault that M. was removed from his care and he had not taken
responsibility for the risk factors that caused her removal.
Additionally,
the social worker had observed the father’s interactions with M. at least 10
times and found that he was unable to adequately supervise her, change her
diaper, or feed her properly without reminders from the social worker. Although both the Department’s social worker
and the mental health rehabilitation specialist from the family enrichment
program had provided the father with
feedback regarding these issues, he had not changed his behavior and his
visitation with M. was always supervised.
The social worker acknowledged that she had not observed any hoarding by
the father in his room at the transitional housing unit, but noted that the
rules there required him to pick up after himself.
During his
testimony, the father agreed that the warehouse is not currently suitable as a
home for children. M.’s mother was
living in the warehouse, which contained used items that he previously
sold. He has been unable to clean the
warehouse because he and the mother disagreed about it. The mother brought most of the items to the
warehouse and he tried to get her to throw them away. If M. were returned to him, he would not live
in the warehouse and would not return M. to her mother because she is not
capable of taking care of M. for more than two or three hours. The father believed that he could stay in the
transitional housing unit for nine months and was looking for a low-income
apartment. He has saved more than $1000
and is arranging for child care.
Additionally,
the father testified that he has never been told not to bring food to his
visits with M., except when she started getting a rash. He never insists that she eat and stopped
bringing grapes after the social worker told him not to bring them. The mother is at fault for M. being removed
since he was at work when things happened.
According to the father, he has a connection with M. and he knows that
he has responsibility for her care and support, including protecting her from
her mother.
3. The Juvenile Court’s Orders
At the conclusion of the
contested 12-month review hearing, the juvenile court made several
findings. First, the court found that
clear and convincing evidence showed that the return of the child to the
physical custody of the father would create a substantial risk of detriment to
the child’s safety, protection, and physical or emotional well-being. Although the court believed that the father
loved M. and worked very hard to provide for the family, the court found that
the father did not have any insights into the problems that had brought him
before the court, including his failure to provide a suitable home.
Second, the
juvenile court found that there was clear and convincing evidence that
reasonable services had been offered to the father and there was no substantial
probability that M. would be returned to him in the next six months. The court pointed to the evidence showing
that his visits with M. were still supervised and he still needed directions
regarding basic child care.
Accordingly,
as set forth in the court’s order of November 27, 2012, the court ruled that the father’s
reunification services were terminated; that M. would continue her placement in
the foster home; the father would have supervised visitation of a minimum of
two visits per week for two hours each visit; and the section 366.26 permanency
planning hearing would be held on March 26, 2013.
G. The
Father’s Writ Petition
The father
filed a petition for extraordinary writ pursuant to California Rules of Court,
rule 8.452
on December 31, 2012, seeking relief from the November 27, 2012 order setting
the section 366.26 hearing. He contends
that further reunification services are necessary; he has the resources to
support his children; he is not homeless and will remodel his place or move if
ordered to do so; he has done everything he was asked to do; he attends
Alcoholics Anonymous and is “clean of alcohol and [has] never used drugsâ€; and
he does not understand “why this is happening . . . .†The father also complains that he had only
been allowed one visit for two hours per week, instead of the court-ordered
minimum of two visits for two hours each week.
DISCUSSION
Before
evaluating the father’s contentions, we will provide an overview of the
statutory requirements for the termination of reunification services, as well
the applicable standard of review.
A. Termination
of Reunification Services
Section
361.5, subdivision (a), generally mandates that reunification services are to
be provided whenever a child is removed from the parents’ custody. (See In
re Luke L. (1996) 44 Cal.App.4th 670, 678 (Luke L.).) “Only where there
is clear and convincing evidence the [Department] has provided or offered
reasonable services may the court order a section 366.26 hearing.†(Robin
V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165 (Robin V.); § 366.21, subd. (g)(2).)
“Reunification
services must be ‘designed to eliminate those conditions that led to the
court’s finding that the child is a person described by Section 300.’ (§ 362, subd. (c).) Accordingly, a reunification plan must be
appropriately based on the particular family’s ‘unique facts.’ [Citation.]â€
(In re T.G. (2010) 188
Cal.App.4th 687, 696; see Luke L.,
[Department] identified the problems leading to the loss of custody, offered
services designed to remedy those problems, maintained reasonable contact with
the parents during the course of the service plan, and made reasonable efforts
to assist the parents in areas where compliance proved difficult . . . .†[Citation.]’
[Citation.]†(
Superior Court (2004) 123 Cal.App.4th 768, 793-794.) “Among its components, the reunification plan
must include visitation.
(§ 362.1.) That visitation
must be as frequent as possible, consistent with the well-being of the
minor. (Ibid.)†(
“The
adequacy of reunification plans and the reasonableness of the [Department’s]
efforts are judged according to the circumstances of each case.†(Robin
V., supra, 33 Cal.App.4th at p.
1164; Amanda H. v. Superior Court
(2008) 166 Cal.App.4th 1340, 1345.) That
additional services might have been possible, or that the services provided
were not the services the parent thought were best for the family, does not
render the services offered or provided inadequate. “ ‘The standard is not whether the
services provided were the best that might be provided in an ideal world, but
whether the services were reasonable under the circumstances.’ †(In re
T.G., supra, 188 Cal.App.4th at
p. 697; In re Misako R. (1991) 2
Cal.App.4th 538, 547 (Misako R.).)
On appeal,
the applicable standard of review is sufficiency of the evidence. (Kevin
R. v. Superior Court (2010) 191 Cal.App.4th 676, 688 (Kevin R.).) “In reviewing
the reasonableness of the services provided, this court must view the evidence
in a light most favorable to the [Department].
We must indulge in all legitimate and reasonable inferences to uphold
the [juvenile court’s findings]. If
there is substantial evidence supporting the judgment, our duty ends and the
judgment must not be disturbed.†(
re Monica C. (1995) 31 Cal.App.4th 296, 306.) “We have no power to judge the effect or
value of the evidence, to weigh the evidence, to consider the credibility of
witnesses or to resolve conflicts in the evidence or the reasonable inferences
which may be drawn from that evidence.â€
(In re Casey D. (1999) 70
Cal.App.4th 38, 52-53.)
B. Analysis
The
Department requests that the writ petition be dismissed because it does not
comply with the requirement that the petition be accompanied by a memorandum
that provides a summary of significant facts, separately headed points supported
by argument and citation of authority, and citations to the record for any
reference to a matter in the record.
(Rule 8.452(a), (b).)
Alternatively, the Department argues that the juvenile court’s orders
are supported by substantial evidence and for that reason the writ petition
should be denied. As we will discuss, we
agree that the court’s orders are supported by substantial evidence.
Whether
appellate review is sought in a writ proceeding or in an appeal, we apply the
general rule that the trial court’s judgment or order is presumed correct and
error must be affirmatively shown. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) Where, as here, our standard of review
requires that we review the juvenile court’s order for substantial evidence (
Cal.App.4th 1067, 1078; Kevin R.,
party challenging the order “has the
burden to demonstrate
that there is
no evidence of
a sufficiently substantial
character to support
the [order].†(In
re Geoffrey G. (1979) 98 Cal.App.3d 412, 420; see also In re N.M. (2011) 197 Cal.App.4th 159, 169.)
Here, the
father has made no effort to demonstrate that the juvenile court’s orders are
not supported by substantial evidence.
Having reviewed the entire record on appeal, we determine that
substantial evidence supports the court’s orders. The evidence shows that the father received
reunification services for 12 months, including parent orientation, basic
parenting class, Family Wellness Court, drug testing, a 12-step program with a
sponsor, the family enrichment program (monitoring of parenting skills), bus
passes, support by the Department, and supervised visitation with M. The father did not participate in the
individual counseling ordered by the Family Wellness Court.
Despite the
extensive provision of reunification services to the father, he failed to
provide a safe home for the child. The
evidence shows that the warehouse where the father and mother lived (except
when father stayed briefly in an apartment and a temporary transitional housing
unit) was cluttered due to the parents’ hoarding, unsanitary due to the
presence of rotten food and garbage, and unsafe due to the exposed electrical
wiring and holes in the ceiling. These
conditions never improved during the time the father was receiving
reunification services. The father had
also failed to attain basic parenting skills and the social workers feared that
M. would be returned to the care of her mother in the warehouse, although the
mother’s other six children (including her three children with the father) had
been removed due to her continued inability to adequately meet the children’s
basic needs and provide adequate supervision.
We
accordingly determine that substantial evidence supports the juvenile court’s
findings that the Department has provided or offered reasonable services to the
father (§ 366.21, subd. (g)(2)) and there would be a substantial danger to
the safety and well-being of the child if she were returned to the father (§
361, subd. (c)(1)). We will therefore
deny the father’s writ petition on that ground.
Having reached this conclusion, we need not address the Department’s
request for dismissal of the writ petition.
DISPOSITION
The
petition for extraordinary writ is denied.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
__________________________
GROVER, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
name="_ftn2" title=""> [2]
The Department’s request for judicial notice of this court’s opinion in a
related appeal, In re S.G. (Dec. 20,
2012, H038274) [nonpub. opn.] is granted.
(Evid. Code, § 452, subd. (d)(1).)
In that opinion, this court affirmed the juvenile court’s order
terminating the parental rights of M.’s mother and father with respect to M.’s
three siblings, pursuant to section 366.26, subd. (c)(1)(B)(i).
