Robert M. v. Superior Court
Filed 3/5/13
Robert M. v. Superior Court CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
ROBERT
M.,
Petitioner,
v.
THE SUPERIOR COURT OF
KERN COUNTY,
Respondent;
KERN COUNTY DEPARTMENT
OF HUMAN SERVICES,
Real Party in Interest.
F066375
(Super. Ct. No. JD126056-00)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Robert M.,
in pro. per., for Petitioner.
No
appearance for Respondent.
Theresa A.
Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Robert M. in propria persona seeks an
rule 8.452) from the juvenile court’s orders terminating his reunification
services at a contested 12-month review hearing (Welf. & Inst. Code,
§ 366.21, subd. (f))
name="_ftnref2" title="">[1] and setting a section 366.26 hearing as to his
six-year-old son, Dylan. He contends the
juvenile court violated his rights under the Americans with Disabilities Act of
1990 (42 U.S.C. § 12101 et seq.).
Alternatively, he contends the juvenile court erred in finding there was
not a substantial probability Dylan could be returned to his custody. We disagree and deny the petition.
FACTUAL AND PROCEDURAL SUMMARY
Robert and
his girlfriend, Alicia,
name="_ftnref3" title="">[2] are the parents of Dylan, the subject of this
writ petition. In February 2011,
sheriff’s deputies responded to a report of domestic violence at the family
residence and found Robert and Alicia under the influence of methamphetamine
and Alicia complaining of neck pain. She
said Robert hit her several times in the back of the head. Alicia was transported to the hospital,
Robert was arrested, and then four-year-old Dylan and his eight-year-old half
brother Johnny were taken into protective custody by the Kern County Department
of Human Services (department). They
were placed together in foster care.
In April
2011, the juvenile court exercised its dependency
jurisdiction pursuant to an original petition (§ 300, subd. (b)),
ordered the children removed from parental custody, and ordered reunification
services for Alicia as to Dylan and Johnny, and for Robert as to Dylan. Robert and Alicia’s services plans required
them to participate in domestic violence and substance abuse counseling and
submit to random drug testing. The
juvenile court did not offer reunification services to Johnny’s alleged
father. The juvenile court set the
six-month review hearing for September 2011, though it was continued until
November.
Meanwhile,
Robert and Alicia separated and were both doing well in their services plans;
however, Robert began what the juvenile court would later characterize as a
“campaign†to discredit Alicia. In
August 2011, social worker Grace Abaya visited Robert at his home. He took the opportunity to tell her that
Alicia was using drugs and had a drug-addicted boyfriend. Abaya told Robert that she could not discuss
Alicia’s case with him and told him he needed to focus on himself and his
efforts to reunify with Dylan. According
to Abaya, “Robert kept going on and on about Alicia†and she had to interrupt
him to tell him not to worry about her.
In addition, Robert made increasing demands for more time with Dylan and
accused the department of treating him unfairly in relation to Alicia. In its report for the six-month review
hearing, the department advised the juvenile court that Robert appeared to be
attempting to exert control over Alicia through Dylan, and stated it was not
yet ready to recommend family maintenance services for either parent.
In November
2011, at the six-month review hearing, the juvenile court continued
reunification services for Robert and Alicia to the 12-month review hearing,
which it scheduled in March 2012. It was
continued and ultimately conducted as to Robert in December 2012.
In the interim, Robert’s
preoccupation with Alicia intensified, particularly as it related to her
boyfriend, David. Robert enlisted the
assistance of his two ex-wives, Michelle and Robin, to track Alicia and her
activities. Michelle lived in Alicia’s
neighborhood. She videotaped Alicia and
followed her in her car. Robin lived in
Georgia. While researching Alicia and
David’s names on the Internet, she discovered that Alicia was scheduled to
appear in Ridgecrest for a hearing on a petition for a restraining order filed
by David. Robin informed Robert who with
his girlfriend, Rosemary, traveled to attend the hearing. They sat in the courtroom until the case was
called and dismissed. All the while,
Alicia had a restraining order against Robert prohibiting him from being within
100 yards of her. Robin also filed a
complaint with a state agency against the veterinarian who employed Alicia. As a result, the veterinarian was
investigated for violations.
In April 2012, the department filed
a petition under section 388 asking the juvenile court to order a psychological
evaluation for Robert in light of his behavior and information the department
received that Robert had previously been diagnosed with obsessive compulsive
disorder, depression, and bipolar disorder.
The juvenile court set a hearing on the section 388 petition for April
2012.
In May 2012, the juvenile court
conducted the 12-month review hearing as to Alicia and ordered the children
placed with her under family maintenance.
As part of her family maintenance plan, Alicia was required to submit to
monthly random drug testing. The
juvenile court continued the 12-month reviewing hearing as to Robert and the
section 388 hearing (combined hearing) to May 2012.
The combined hearing was continued
and convened in June 2012. After hearing
testimony, the juvenile court granted the section 388 petition and appointed
psychologist Dr. Eugene T. Couture to evaluate Robert. The juvenile court also continued the
12-month review hearing to August 2012.
The 12-month review hearing was continued multiple times and conducted
as a contested hearing in December 2012.
Meanwhile, in July 2012, Dr.
Couture evaluated Robert and diagnosed him with bipolar I disorder. During the evaluation, Dr. Couture
ascertained that Robert had been treated for the disorder since the 1990’s and
was receiving appropriate medical treatment for it. Nevertheless, Dr. Couture opined that Robert
was either still symptomatic or also had a personality disorder. Further, he opined that Robert presented a
continuing danger to Dylan, even with treatment, and that the juvenile court
should cease any effort to reunite them.
In October
2012, the department filed a non-custody supplemental petition (§ 387)
asking the juvenile court to detain Dylan and Johnny because Alicia had stopped
drug testing and her live-in boyfriend, Joseph, threw a porcelain plate at her
striking her in the arm, and threatened to kill her. It was also reported that Alicia appeared to
be under the influence of drugs.
Alicia
explained that she had not drug tested because she was undergoing chemotherapy
for thyroid cancer and that the chemotherapy impaired her memory and caused
bladder infections, which prevented her from producing a urine sample. She attributed any irregularities in her
speech and coordination to her thyroid tumor.
In December
2012, the juvenile court convened a contested dispositional hearing as to
Alicia on the supplemental petition
and the 12-month review hearing as to Robert on the original petition. The department’s recommendations to the
juvenile court were to terminate reunification services for both parents and
set a section 366.26 hearing as to Dylan and Johnny who, by this time, had been
placed with a non-related extended family member. By the time of the hearing, Robert had
consistently tested negative for drugs and completed an outpatient substance
abuse program and domestic violence counseling.
The
juvenile court first adjudicated the supplemental petition. Alicia testified about her cancer diagnosis
and the effects of chemotherapy on her comportment. She also testified that she missed drug tests
because her testing number was changed without her knowledge. As it turned out, her testimony was perjured
and she did not have cancer. Following a
continuance and further argument, the juvenile court sustained the supplemental
petition and terminated Alicia’s reunification services.
The juvenile
court then proceeded to adjudicate the 12-month review hearing as to
Robert. Dr. Couture testified and
described bipolar I disorder and how it manifests behaviorally. He also testified why it would be inherently
dangerous to the minor child of a parent suffering from the disorder. In Robert’s case, Dr. Couture stated, “I
don’t think he can control himself in a sufficient manner to be entrusted with
the care of his son. It’s that
simple.†At no time during the hearing
did Robert’s attorney raise an issue with respect to the Americans with
Disabilities Act.
At the
conclusion of the hearing, the juvenile court found that Robert’s efforts to
resolve the situation requiring Dylan’s removal had been minimal. The juvenile court also found that it would be
detrimental to return Dylan to Robert’s custody and that there was not a
substantial probability Dylan could be returned to him with continuing
services. Consequently, the juvenile
court terminated Robert’s reunification services and set a section 366.26
hearing.
Robert filed a writ petition and appeared for oral argument. At oral argument,
he raised issues not raised in his petition.
oral argument, we will not address them.
672, 686.) Rather, we confine our review
to the issues raised in the petition.
DISCUSSION
Americans
with Disabilities Act
Robert contends that bipolar I
disorder is a protected disability under the Americans with Disabilities Act
(ADA). Therefore, he further contends
the juvenile court violated his rights under the ADA by terminating his
reunification services based on his disorder.
Because Robert raises this issue for the first time on appeal, it is not
properly before us. (
1252.)
In any event, “the ADA does not
directly apply to juvenile dependency proceedings and cannot
be used as a defense in them.†(
1127, 1139, overruled on another ground as stated in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Consequently, even if Robert had preserved
the issue, the ADA is not a proper basis for challenging the juvenile court’s
order terminating his reunification services.
Detrimental Return
Robert contends that he fully complied with his services
plan. In light of his request that the
juvenile court be directed to return Dylan to his custody, his contention could
be liberally construed as a challenge to the juvenile court’s finding that
returning Dylan to Robert would place Dylan at a substantial risk of
detriment. We will so construe it.
At each review hearing, there is a statutory presumption
that the child will be returned to parental custody unless the juvenile court
finds, by a preponderance of the evidence, that the return of the child would
create a substantial risk of detriment to the child’s safety, protection or
well-being. (§§ 366.21, subds. (e)
& (f); 366.22, subd. (a).) In
assessing the risk of detriment, the juvenile court considers the extent to
which the parent participated and made progress in the court-ordered treatment
plan. (§§ 366.21, subds. (e) &
(f); 366.22, subd. (a).) However,
ultimately, the court’s decision hinges on whether the child would be safe in
parental custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
of the evidence to support the juvenile court’s finding, the question is not
whether the juvenile court could have made a contrary finding, but whether the
finding it made is supported by substantial evidence. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
On the facts of this record, we conclude that it is.
In this case, Dr. Couture testified
that Robert’s sense of entitlement without bounds made him inherently dangerous
and the record supports his opinion.
Robert’s completion of his services plan does not diminish that danger
or otherwise make him a safe parent. Thus,
the juvenile court properly ruled in not returning Dylan to Robert’s custody.
Substantial Probability of Return
Robert’s contention that he fully complied with his
services plan could also be construed as challenging the juvenile court’s
finding there was not a substantial probability of return. If the juvenile court finds there is a
substantial probability that the child can be returned to parental custody and
safely maintained in the home, the juvenile court can continue services beyond
12 months.
title="">[3]
(§§ 361.5, subd. (a)(3); 366.21, subd. (g)(1).)
One of the factors the juvenile court must affirmatively
find in assessing the probability of return is whether the parent demonstrated
the capacity and ability to complete the objectives of his or her treatment
plan. (§ 366.21, subd. (g)(1)(C).) However, the juvenile court must also find
that the parent “demonstrated the capacity and ability … to provide for the
child’s safety, protection, physical and emotional well-being, and special
needs.†(Ibid.)
Here, even though Robert completed the technical
requirements of his services plan, there was substantial evidence that
returning Dylan to his custody would endanger Dylan. Further, there was no evidence that extending
Robert’s services would change the situation.
Thus, the juvenile court properly found there was not a substantial
probability of return and properly ruled in terminating Robert’s reunification
services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
