K.S. v. Superior Court
Filed 1/22/09 K.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
K.S., Petitioner, v. THE SUPERIOR COURT OF MADERA COUNTY, Respondent; MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES/CHILD WELFARE SERVICES, Real Party in Interest. | F056262 (Super. Ct. Nos. BJP015830, BJP015831, BJP016832) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Thomas L. Bender, Judge.
Cristobal Perez, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
-ooOoo-
____________________
*Before Wiseman, A.P.J., Levy, J., and Cornell, J.
After more than two years of reunification services, the juvenile court denied petitioner reunification services at a contested dispositional hearing on a subsequent petition (Welf. & Inst. Code, 342)[1]and set a section 366.26 hearing. Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the juvenile courts orders. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were initiated in February 2006 when petitioners four daughters, ranging in age from 21 months to 6 years were removed from their mother S. by the department of social services (department) because of S.s methamphetamine use. At the time, petitioner, a registered drug offender, was incarcerated.
The children were detained pursuant to an original dependency petition ( 300, subds. (b) & (g)) and, in April 2006, were ordered removed from petitioner and S.s custody. Petitioner and S. were provided reunification services to resolve their drug use.
Over the ensuing six months, petitioner remained drug free and participated in his reunification services. S., on the other hand, was arrested in July 2006 on drug and conspiracy charges and remained jailed until the following October.
By March 2007, petitioner and S. were living together and progressing toward completion of their reunification plans. They resolved to remain drug free in order to provide their daughters a better home environment. At the 12-month review hearing, the court ordered the children returned to their parents custody under family maintenance.
The children remained in parental custody under family maintenance until January 2008 when S. was arrested for interfering with a power line and endangering the children. Police officers found an electrical cord running from a neighbors house into petitioners residence. They also found hazardous conditions in the home involving the use of propane for heating and cooking. The house was declared uninhabitable and S. tested positive for methamphetamine. The children were detained pursuant to a subsequent petition ( 342).
In May 2008, at the dispositional hearing on the subsequent petition, the juvenile court terminated family maintenance services for S. but returned the children to petitioner under family maintenance. However, three months later, the department took the children into protective custody because the family home was filthy and petitioner admitted using methamphetamine in late June 2008.
In July 2008, the department filed a subsequent petition (petition), which the juvenile court sustained. In its dispositional report on the petition, the department concluded petitioners addiction to methamphetamine was too great for him to overcome despite nearly 30 months of services. Consequently, the department recommended the court terminate reunification services and proceed to permanency planning.
A contested dispositional hearing on the petition was conducted in October 2008. Petitioners attorney submitted the case without offering any evidence or argument. The court terminated reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner challenges the departments evidence he was abusing drugs. He points to the fact he was required to drug test as part of probation from which he was released in March 2008. He also claims he tested positive for the department once, which was for marijuana in August 2008. He asks this court to stay the section 366.26 hearing so that he and S. can complete a 37-day inpatient drug treatment program. We find no basis for relief.
As a preliminary matter, this court does not reweigh the evidence. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) Rather, we determine whether substantial evidence supports the juvenile courts findings and orders based on the evidence before it. (Ibid.) By raising a challenge to evidence of his drug use, petitioner in essence asks this court to reweigh evidence considered by the juvenile court. We decline to do so.
Further, with respect to the juvenile courts findings and orders, we conclude substantial evidence supports them. Where, as here, the juvenile court determines at the 18-month review hearing it would be detrimental to return the children to parental custody, it has little choice but to set a section 366.26 hearing unless continued services would serve the childrens best interests. ( 366.22, subd. (a), Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)
In this case, there is no basis for finding the childrens best interests would be served by continuing reunification efforts. Rather, the converse is true. Petitioners children were subjected to multiple removals, in part because of petitioners drug abuse, which, contrary to his claim, was ongoing. According to the record, from March to late August 2008, petitioner was asked to drug test 15 times. He failed to test eight times from March to mid-May, resulting in presumptive positive tests. He subsequently tested negative in mid-June. A week later, he failed to submit to hair follicle testing. The next day, he cut and colored his hair and refused to give an underarm hair for testing. Several days later, he failed to drug test. Six days after that, he admitted using methamphetamine and was cited by a police officer for possessing drug paraphernalia and being under the influence of controlled substances. Within several days of that, his children were removed. In early August, petitioner tested positive for marijuana and in late August, he tested negative for drugs.
Under the facts as set forth above, it becomes clear that petitioner was still using drugs and resisting detection. To pinpoint his one positive test in August as the sum total of his drug use is disingenuous and ignores his responsibility for his childrens neglect. The juvenile court properly found the children best interest lies in a permanent placement. Accordingly, 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.
