T.T. v. Super. Ct.

Filed 12/16/08 T.T. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Commissioner.

T.T., in pro. per., for Petitioner.

No appearance for Respondent.

Janelle E. Kelley, Interim County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Vartabedian, A.P.J., Gomes, J., and Kane, J.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her three children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In June 2007, petitioners then five-year-old daughter and three-year old fraternal twin son and daughter were taken into protective custody by the Fresno County Department of Children and Family Services (department) after petitioner was arrested for attempting to run over the childrens father^[2]with a car and exposing the children to an unsafe environment. The couple has a history of domestic violence dating back to 2002. At the time of the June incident, there was an order restraining the father from having contact with petitioner but he told an officer he believed petitioner was using methamphetamine and he was concerned for his children.

The juvenile court ordered the children detained pursuant to an original dependency petition, exercised dependency jurisdiction, and ordered both parents to participate in a plan of reunification. Petitioners plan required her to complete a parenting course, substance abuse, mental health and domestic violence evaluations, and submit to random drug testing. The court granted the department discretion to allow third party supervised visits with the consent of minors counsel and set the six-month review hearing for September 2007.

By the six-month review of services, petitioner had minimally complied with her court-ordered services. She completed a substance abuse assessment and was not recommended for treatment. She failed to drug test 6 of the 13 times she was called to test, later excusing her failure to drug test because she was either tired, out of town or working. She was dropped from her parenting course for missing four classes and was placed on a waiting list. She completed a mental health assessment, which indicated she could benefit from therapy but she refused to see the contracted therapist, claiming she was under the treatment of a psychologist. This was not true. She also required multiple assessments to determine the appropriate domestic violence counseling group but had yet to participate. In addition, she was not showing up for supervised visitation. However, the department believed she was visiting the children at the home of maternal relatives where they were placed.

At the six-month review hearing in January 2008, the juvenile court ordered continued services for both parents. The court also granted the department discretion to discontinue random drug testing and to arrange third party supervised and unsupervised visitation with the consent of minors counsel. The court ordered the matter to be calendared within three days if minors counsel did not consent. The court also set the 12-month review hearing for July 2008.

By the 12-month review of services, petitioner had completed domestic violence counseling but was still uncooperative with mental health treatment. Further, petitioner did not complete the parenting class and, in February 2008, she submitted a tampered specimen for drug screening. She subsequently refused to retest and in June 2008, refused to spot test. In addition, the social worker had to reinstate supervised visitation because petitioner intimidated the childrens care provider to get into the home, showed up at inappropriate hours, and tried to remove the children from the care provider. In early June 2008, petitioner refused to schedule visitation and made no further attempt to visit the children. Consequently, the department recommended the court terminate petitioners reunification services and proceed to permanency planning.

Petitioner contested the departments recommendation and, in July 2008, the juvenile court set a contested hearing. The court also denied petitioners request to have the children returned to her custody and granted the department discretion for third party supervised visitation.

The contested 12-month review hearing was conducted in September 2008. Petitioner appeared through her attorney who stated he planned to call petitioner as a witness but, since she did not appear, he asked to confirm for trial. The court did not find good cause to do so and conducted the review hearing. County counsel submitted its report and recommendations and petitioners attorney offered no evidence and objected to the departments findings and orders. The juvenile court found petitioner made minimal progress in her reunification plan and it would be detrimental to return the children to her care. Consequently, the court terminated reunification services and set a section 366.26 hearing.

Petitioner challenged the courts setting order by writ petition and, in December 2008, appeared for oral argument.

DISCUSSION

In the petition, petitioner challenges the courts order removing the children from her custody when, she claims, it promised at the detention hearing to return them to her after her release from custody. She also challenges the necessity to complete a substance abuse evaluation when she has no criminal history of drug use or possession, to drug test when drug treatment was not recommended, and to complete a batterers treatment program when she was the one battered. She further challenges the departments failure to exercise its discretion to arrange third party, liberal and unsupervised visitation given her participation in therapy and in the victims group. Finally, she challenges the courts refusal to return the children to her custody when, in January 2008, it found there was a substantial probability the children would be returned to her custody by the next hearing.

With respect to the courts orders removing the children and requiring petitioner to complete specific services, petitioner waived her right to challenge those decisions by failing to appeal from the juvenile courts dispositional findings and orders issued in September 2007. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 812.) Further, when petitioner agreed to the reunification plan as ordered at the dispositional hearing, she consented to its contents. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) Had she wanted to seek modification of the plan, she could have done so by either bringing it to the attention of the department as she did when she sought victim rather than batterers counseling or by filing a section 388 petition at any time during the course of the dependency proceedings.

With respect to the departments exercise of its discretion to arrange visitation, the department was never granted discretion to arrange liberal visitation nor was visitation contingent on petitioners participation in therapy and victims counseling. Rather, it was contingent upon the consent of minors counsel. Further, there is no evidence on the record that petitioner requested and was denied unsupervised visitation. Had that occurred, she could have brought it to the courts attention pursuant to its order.

Further, the juvenile courts substantial probability of return finding in January 2008 has no bearing on its decision not to return the children to petitioners care at the September 2008 hearing. Nor does petitioner assert error with respect to the findings and orders the court made at the September hearing.

At oral argument, petitioner argued she satisfied all the requirements to reunify with her children. It is not our role, as a reviewing court, to reweigh the evidence. Nevertheless, to the extent petitioner believes circumstances have changed such that a modification to the juvenile courts orders would serve the best interest of her children, she may want to file a section 388 petition in the juvenile court. However, on this record, 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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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The childrens father did not file a writ petition.