Ramon R. v. Super. Ct.

Filed 8/27/08 Ramon R. v. Super. Ct. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Writ petition to review order setting hearing under Welfare and Institutions Code section 366.26. Robert L. Stevenson, Juvenile Court Referee. Petition denied.

Thomas S. Szakall for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. OCrowley, Senior Deputy County Counsel for Real Party In Interest Los Angeles County Department of Children and Family Services.

__________________________________

Ramon R. seeks extraordinary writ relief (Welf. & Inst. Code, 366.26, subd. (l);^[1]Cal. Rules of Court, rule 8.452) from the juvenile courts order, made at the

six-month review hearing ( 366.21, subd. (e)) after expiration of the 18-month statutory limit for reunification ( 361.5, subd. (a)(3), 366.22), terminating family reunification services and setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his two-year-old daughter Jessica M. We deny the petition, finding no merit to Ramon R.s contentions there was not substantial evidence to support a finding Jessicas return to his care would create a substantial risk of detriment to her well-being, and the juvenile court abused its discretion by denying his request for a continuance of the hearing.

FACTUAL AND PROCEDURAL BACKGROUND

On the day Jessica was born in August 2006, a social worker for the Los Angeles County Department of Children and Family Services (Department) responded to a report from the hospital advising of caretaker incapacity. At the hospital, staff told the social worker that Jessicas mother, Raquel M., was agitated, incoherent and delusional. Raquel M. denied that she was pregnant and claimed to have three other children which, according to Ramon R., she did not have. Raquel M. and Ramon R. admitted they were not prepared to care for a baby.

On September 1, 2006 the Department filed a section 300 petition to declare Jessica a dependent child of the juvenile court. The petition alleged Raquel M. suffered from mental and emotional problems and had failed to take psychotropic medication prescribed by a psychiatrist, placing Jessica at risk of physical and emotional harm.

On September 26, 2006 Ramon R. submitted to the courts jurisdiction and the court found him to be Jessicas presumed father. The court sustained the section 300 petition, appointed Dr. Timothy Collister, Ph.D. to conduct a psychological evaluation

of Raquel M. (Evid. Code, 730), and continued the matter to October 24, 2006 for the disposition hearing. On October 24, 2006 the disposition hearing was continued to December 7, 2006 because Dr. Collisters report had not been received.

At the disposition hearing on December 7, 2006 the court received Dr. Collisters psychological report into evidence. In the report, Dr. Collister described Raquel M. as suffering from a psychotic disorder involving delusional ideation and paranoia, presenting a significant risk of neglect and physical and emotional abuse if a child were placed in her care. Dr. Collister concluded Raquel M. was entirely inadequate for caring for [Jessica], and the prognosis for her benefiting from therapeutic services and psychotropic medication was low and at best, guarded.

The court ordered Jessica suitably placed by the Department, ordered both parents to complete a parent education program, and ordered Raquel M. to participate in individual counseling with a psychologist and take her prescribed medication. The court granted Ramon R. monitored visitation with discretion to the Department to allow him unmonitored visits after he completed a parenting program, and continued the matter to June 7, 2007 for the six-month review hearing. ( 366.21, subd. (e).)

In its report for the six-month review hearing the Department stated Raquel M. was not taking advantage of mental health services and did not even seem to understand why she needed mental health intervention. Ramon R. had attended several sessions of a parenting education program but had not completed the program, acted appropriately during visits with Jessica, and demonstrated ability to be a capable father. Ramon R. was unable to properly care for Jessica however due to his ongoing responsibility to take care of Raquel M. The Department recommended the court terminate reunification services and set a hearing to select a permanent plan for Jessica.

On June 7, 2007 the court ordered that a family group team decision making meeting (TDM) be held to develop a plan for Jessicas safe return to Raquel M. and Ramon R., and continued the matter to August 7, 2007 for a contested six-month review hearing.

In a report for the contested hearing the Department indicated Ramon R. had completed a parenting education program but had attended just three of seven possible visits with Jessica; had not provided the social worker with his residence address; and did not attend a TDM as ordered by the court on June 7, 2007, later telling the social worker he had miscalendared the date of the meeting. Ramon R. told the social worker that taking care of Raquel M. was too hard. The Department again recommended termination of reunification services.

On August 7, 2007 the court again ordered that a TDM be held, ordered the Department to submit a supplemental report addressing the results of the TDM, and continued the contested six-month review hearing to September 25, 2007. In its supplemental report the Department indicated the social worker made several unsuccessful attempts to contact Ramon R. to set up the TDM, and eventually spoke to him on August 30, 2008. The following day, as Ramon R. and Raquel M. were on their way to the Departments office to visit Jessica, Raquel M. became upset, attacked Ramon R. in the middle of the street, and was arrested by the police. The social worker spoke with Ramon R. three times during the following week, and each time Ramon R.s focus was on Raquel M.s situation and he would not address the issues involving Jessica. Raquel M. thereafter declined to participate in a TDM. On September 25, 2007 the court continued the contested six-month review hearing to November 14, 2007.

In a supplemental report for the November 14, 2007 hearing the Department indicated Ramon R. and Raquel M. were renting a room in a house that was generally clean but lacking furniture, bathroom supplies, kitchen utensils, or a working refrigerator. The owner told the social worker that the house was for sale. The Department further reported that a TDM coordinator had met with Raquel M. and Ramon R. but the meeting had been unsuccessful. The coordinator reported that it was apparent Raquel M. had significant mental health and drug use issues and was clearly incapable of parenting a child. When Raquel M. refused to participate in

the meeting, Ramon R. attempted to force her to participate, refusing to acknowledge Raquel M.s limitations. On November 14, 2007 the contested hearing was continued to December 18, 2007 for a TDM and a supplemental report from the Department.

In its supplemental report for the December 18, 2007 hearing the Department advised that a TDM had been held. Prior to the meeting, Raquel M.s therapist had told the social worker that although Raquel M.s condition had improved to the point that she was now able to hold a conversation and could manage without hospitalization, she was unable to take care of herself without assistance and was likely not taking her medication. At the TDM, Ramon R. acknowledged Raquel M. forgets a lot of things, but stated that he did not think she would hurt Jessica. Ramon R. further stated that it was his intention to be Jessicas principal caregiver and to leave her alone with Raquel M. only for short periods of time. As the TDM progressed and issues were not resolved Ramon R. became increasingly frustrated and upset, and when he was presented with a safety plan indicating the Department would recommend termination of reunification, Ramon R. refused to sign the document and stated, my hand is too heavy. The Department once again recommended termination of family reunification services, pointing out that it was evident Jessica would be placed at risk if she remained with Raquel M. even for a few minutes, and Ramon R. did not understand Raquel M.s limitations and would be unable to protect Jessica. On December 18, 2007 the juvenile court continued the contested hearing to February 11, 2008 and appointed Dr. Collister to conduct another psychological evaluation of Raquel M., including an assessment of the risk of harm posed to Jessica if she were to be returned to Raquel M. and Ramon R. (Evid. Code, 730.)^[2]

In its report for the March 13, 2008 hearing the Department stated that

Raquel M.s therapist had indicated Raquel M.s ability to focus had improved, perhaps because she was taking her medication, and she could now carry on a basic conversation. Ramon R. had appeared with Raquel M. for her monitored visits with Jessica. At the visits Raquel M. would not interact with Jessica and the social worker coached her to elicit appropriate behavior. During one visit Ramon R. became upset when the social worker tried to help Raquel M. interact with Jessica, raised his voice, used inappropriate language, stomped his foot, and got close to the social workers face. Later during the visit Ramon R. yelled at Raquel M., criticizing her behavior, and at the end of the visit he again became angry and argued with the social worker in a loud voice. The Department concluded that placing Jessica in the care of Raquel M. and Ramon R. would create a high risk to Jessicas safety, in view of Raquel M.s minimal capacity to parent and Ramon R.s focus on caring for Raquel M.s needs at the expense of Jessicas well-being.

In his psychological evaluation, Dr. Crespo concluded Raquel M. suffered from mental illness rendering her permanently incapable of parenting a child, and although Ramon R. was motivated to care for Jessica, he was incapable of doing so due to his own parenting deficits and his need to provide for Raquel M., who was nearly as dependent and vulnerable as [Jessica]. On March 13, 2008 the court continued the contested hearing to May 5, 2008 for a supplemental report from the Department containing an evaluation of Ramon R.s home and his proposed child care providers for Jessica.

In a brief report for the May 5, 2008 hearing the Department indicated

Ramon R. and Raquel M. were living in a two-bedroom apartment they shared with a friend. Ramon R. told the social worker his friend Olga, whose last name

Ramon R. did not know, would babysit with Jessica during the day. Ramon R. told the social worker Olga would come to the Departments office to meet the social worker, but Olga had not appeared. The Department further reported that Ramon R.

had repeatedly violated the courts order that Raquel M. not be present during

Ramon R.s unmonitored visits with Jessica.

At the contested hearing on May 5, 2008 Jessicas counsel requested the court terminate reunification services, noting that Ramon R. continued to place Raquel M.s needs over Jessicas needs, had violated the courts orders by permitting Raquel M. to be present during his unmonitored visitation, and did not have a child care plan for Jessica. Counsel for the Department joined in the request for termination of services, noting the case had reached the 18-month statutory limit for reunification and urging Jessicas well-being would clearly be compromised if she were returned to the custody of Ramon R. and Raquel M. Counsel for Ramon R. argued Jessica should be returned to Ramon R.s custody, because he was in compliance with his case plan, had done nothing that presented a risk to Jessicas well-being, and had an appropriate child care plan with this Olga lady. Counsel for Raquel M. requested a continuance of the hearing so that Miss Olga could be interviewed by the social worker to determine whether Ramon R. had made an appropriate child care plan for Jessica. The court denied the request for a continuance.

After hearing argument, the court found that the return of Jessica to

Ramon R.s custody would create a substantial risk of detriment to Jessicas

well-being. The court observed that it was apparent Ramon R. did not understand the nature and significance of Raquel M.s mental health issues; he had violated the courts orders by allowing Raquel M. to be present during his unmonitored visitation; he did not have an adequate child care plan for Jessica; and it was not unlikely he would leave Jessica alone with Raquel M., placing Jessica in great danger. The court proceeded to terminate reunification services and set the matter for a hearing pursuant to section 366.26.

CONTENTIONS

Ramon R. principally contends there was not substantial evidence to support the juvenile courts finding that return of Jessica to his care would create a substantial risk of detriment to Jessicas well-being. He further contends, in conclusory fashion and without a legal argument, that the court improperly denied his request for a continuance of the six-month review hearing.

DISCUSSION

1. Substantial Evidence Supports the Courts Finding Jessicas Return

To Ramon R. Would Create a Substantial Risk of Detriment to Jessicas

Well-Being.

At the six-month review hearing the court may not order the return of a child to her parents custody if it finds, by a preponderance of the evidence, that such return would create a substantial risk of detriment to the childs safety, protection or physical or emotional well-being. ( 366.21, subd. (e); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 306.) The mere completion of the requirements of the reunification plan - - such as participating in counseling and treatment programs and visiting the child - - is just one consideration under the statute; and the court must also consider to what extent the parent has ameliorated the conditions that required court jurisdiction. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1142.) The record, as we have set forth, contains substantial evidence that, as of the six-month review hearing, Raquel M. had mental and emotional problems with a poor prognosis and which presented a significant risk of neglect and physical and emotional abuse if a child were placed in her care.^[3] The record further establishes that Ramon R. did not understand Raquel M.s parenting limitations and the risk she posed to Jessicas

well-being; his principal focus was on caring for Raquel M.s needs at the expense of Jessicas well-being; and he repeatedly violated the courts order by exposing Jessica to Raquel M. during his unmonitored visits with Jessica. Additionally, Ramon R. had not made an adequate child care plan for Jessica. Under these circumstances, the court properly found that Raquel M.s presence in the home would be detrimental to Jessica and Ramon R. remained unable to protect Jessica from Raquel M.

2. The Court Properly Denied the Request for a Continuance of the Hearing.

The record reflects that during the course of the May 5, 2008 hearing counsel for Raquel M. asked the court for a continuance to enable the Department to assess whether Miss Olga was an adequate child care provider for Jessica. Ramon R. thus misrepresents the record by stating that he requested the continuance. In any case, Ramon R. does not demonstrate abuse of discretion in the denial of the request for a continuance. Section 352, subdivision (a) provides that a continuance may not be granted if it is contrary to the interest of the child, and in considering this interest the court shall give substantial weight to a minors need for prompt resolution of his or her custody status . . . and the damage to a minor of prolonged temporary placements. As of May 5, 2008 the six-month review hearing had already been continued six times over a period of one year, and the case had reached the 18-month statutory limit for reunification. Under these circumstances, and with only a vague reference to a mysterious Olga lady, the court acted well within its discretion in denying the request for a continuance as contrary to Jessicas interest. (In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.)

DISPOSITION

Because substantial evidence supports the juvenile courts order to conduct a hearing pursuant to section 366.26, the petition is denied on the merits.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JACKSON, J.

We concur:

PERLUSS, P. J. WOODS, J.

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

^[2] On January 31, 2008 the juvenile court made a new order, appointing

Alfredo E. Crespo, Ph.D. to conduct the psychological evaluation. On the same date the court continued the contested six-month review hearing to March 13, 2008 and ordered the Department to prepare a report for the hearing.

^[3] When we review the juvenile courts findings under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontractided, that supports the courts determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court.

(In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)