Robert L. v. Superior Court

Filed 9/7/06 Robert L. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. John G. O'Rourke, Judge.

William W. Fjellbo, for Petitioner.

No appearance for Respondent.

Peter D. Moock, County Counsel, and Laura J. Bakker, Deputy County Counsel, for Real Party In Interest.

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Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his daughters D. and S. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In September 2005, police officers received an anonymous report that petitioner and his wife Sandra^[2] were using methamphetamine and physically abusing and neglecting their daughters, then two-year-old D. and one-year-old S. The officers responded to the home of Sandra's mother where petitioner, Sandra and the children were living in a tent in the backyard. Officers found the children and the tent dirty and petitioner and Sandra under the influence of methamphetamine. Petitioner and Sandra were arrested and the children were taken into protective custody by the Kings County Human Services Agency (agency) and placed in foster care.

At the dispositional hearing in November, the juvenile court assumed dependency jurisdiction and ordered both parents to complete outpatient drug treatment, a parenting course, and a mental health assessment, submit to random drug testing and attend weekly Alcoholics Anonymous/Narcotics Anonymous meetings (meetings). The court also ordered weekly supervised visitation and set the six-month review hearing for April 27, 2006.

In its six-month status review, the agency reported petitioner regularly visited the children, who appeared happy and excited to see him. The agency also reported petitioner had nearly completed his parenting program. In addition, he completed a mental health assessment as a result of which he was diagnosed with Attention Deficit Hyperactivity Disorder and referred to the Dual Diagnosis Treatment Program (DDTP). He started the DDTP in October 2005 but his attendance was sporadic. Consequently, he only completed half of the program's second of three phases. In addition, petitioner did not regularly call in to drug test. He called in 44 of the 61 possible testing days and was told to drug test 26 times but only tested 8 times. Each time petitioner drug tested, the results were positive for marijuana except for a test result in February 2006, which was positive for methamphetamine. In addition, petitioner provided no evidence that he was attending meetings and, in February 2006, he was arrested for violating probation by not enrolling in a court-ordered batterer's treatment program.

The agency also reported that Sandra's level of participation very closely mirrored petitioner's and she too was in violation of probation on drug charges for failure to meet with her probation officer. Nevertheless, despite petitioner and Sandra's inconsistent participation in their case plans, the agency recommended the court continue services for another six months given their apparent motivation to change their behavior.

On April 27, 2006, the court convened the six-month review hearing and, at the request of minors' counsel, set a contested hearing for May 18, 2006. Meanwhile, on May 17, 2006, the agency filed an addendum report and asked the court to terminate petitioner and Sandra's reunification services rather than continue them as it had previously recommended. The agency reported that, despite its repeated urging, petitioner was still noncompliant. In addition, he was working 14 to 16 hours, 7 days a week, and unable to take time off from work to participate in his services. As a result, he was placed on hold by the DDTP because of his inconsistent attendance and participation and failure to drug test in May and attend meetings. In light of the agency's change in position, the court found good cause on May 18, 2006, to continue the contested review hearing until June 8, 2006.

On June 8, petitioner was arraigned on his warrant and appointed counsel. He appeared at the contested six-month review hearing and asked the court to continue reunification services for another six months. He testified his employment prevented him from complying with his case plan but that he had a new employer who agreed to give him two days a week to participate in his services. He admitted using marijuana approximately 26 days prior to the hearing, but attributed his drug use to his association with people with whom he and Sandra were living. He stated he and Sandra were living in an apartment and that he planned to resume treatment at the DDTP shortly after the hearing.

Following testimony, the court found petitioner and Sandra were provided reasonable services but failed to participate regularly and make substantive progress in their court-ordered reunification plans. The court further found there was not a substantial probability D. and S. could be returned to either parent within another six months. Consequently, the court terminated reunification services and set the section 366.26 hearing for October 6, 2006. This petition ensued.

DISCUSSION

Petitioner argues he made substantive progress and regularly participated in his reunification plan. Therefore, the juvenile court should have either returned D. and S. to his custody following the contested hearing or continued services to the 12-month review hearing. We disagree.

Petitioner's daughters were removed from his custody because of his drug use yet after six months of services, he admittedly was still testing positive for marijuana. Given the significance of his drug use to his overall case plan and prospects for reunification, his failure to abandon his drug use evidenced his failure to participate or progress in his case plan. Since failure to participate regularly and make substantive progress in court-ordered treatment is prima facie evidence of detriment, the court properly ordered D. and S.'s continued removal from petitioner's custody. (§ 366.21, subd. (e).)

Petitioner's continuing drug use also supports the juvenile court's order terminating petitioner's services. When children, such as D. and S., are under the age of three when removed and the court determines they can not be safely returned to parental custody after six months of services, the court may schedule a permanency planning hearing unless it finds there is a substantial probability the children may be returned after another six months of services. (§ 366.21, subd. (e).) In such a case, the court must continue services to the 12-month review hearing. (Ibid.) In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection and well-being. (§ 366.21, subd. (g)(1).)

In this case, petitioner knew he potentially had only six months to reunify with his daughters and he knew his drug use was a major obstacle to being able to reunify with them. Nevertheless, his drug use continued. In our opinion, that evidence alone undermined any finding in petitioner's favor and justified the court's order terminating services. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Harris, J., and Levy, J.

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

^[2] Sandra also filed an extraordinary writ petition from these dependency proceedings (F050638).