Troy J. v. Super. >Ct. >























Filed 9/29/10 Troy J. v. Super. Ct. CA2/6















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX




>

TROY J., Petitioner, v. THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; SAN LUIS OBISPO DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

2d Civil No. B225258 (Super. Ct. No. JV48584) (San Luis Obispo County)

Father seeks
extraordinary writ review of an order of the juvenile court terminating reunification
services and setting the matter for a hearing terminating parental rights and
establishing adoption as a permanent plan.
(Welf. & Inst. Code, § 366.26.)^[1] Mother is not a party to the writ
proceeding. We deny the petition.

FACTS

In September 2009,
17-month-old R.J. was removed from her mother's home. R.J. has special needs due to mother's drug
use during pregnancy. An amended
juvenile dependency petition alleged that mother was in possession of marijuana
and had engaged in credit card fraud.
She has a history of substance abuse which includes alcohol, marijuana
and heroin. Mother receives methadone
treatment for opioid addiction. She is
mentally unstable and often left R.J. in the care of the maternal grandmother
who is unable to provide adequate care.
R.J. was placed in an Option for Recovery (OFR) foster home for children
who have been exposed to drugs or alcohol.


Troy J. is the presumed
father of R.J., by virtue of being married to mother. The identity of the biological father is
unknown. The amended petition alleged
that Troy J. (father) could have taken a more active role in protecting R.J. from
mother's neglect.

Mother and father
separated before R.J. was born. They
have remained married, but live apart.
They have three older children, one of whom is an adult. Father obtained temporary custody of the two
minor children, Cody, age 16, and Lindsey, age 6.^[2] Cody has been involved with the probation
department and has truancy problems.

At birth, R.J. was
addicted to methadone and tested positive for marijuana. She suffers significant health problems which
include an uneven gait, limited use of one of her hands, and difficulty
tracking her eyes evenly. She requires
ongoing services, such as speech therapy,
occupational therapy, physical therapy and early intervention. Without these services, it is likely her
development may regress.

In March 2009, father
was charged with drunk driving, which was reduced to reckless driving with an
agreement to participate in a court ordered alcohol program. The parties submitted to jurisdiction and
disposition on November 17, 2009. The Department of Social Services
(department) recommended that both parents be offered six months of
reunification services.

Father's case plan
required that he attend a domestic violence
prevention program, obtain a drug and alcohol services assessment, remain
sober, demonstrate his ability to meet R.J.'s special needs, and attend a
parenting education program. The
department recommended that he have two to three unsupervised visits per week
with R.J. After the dispositional
hearing, the court made the appropriate findings and ordered the parties to
comply with their case plans.

At the three-month
interim hearing, the department recommended that services continue for another three
months. According to the report, R.J.
had significant speech delays and exhibited attention-seeking behavior. If she did not receive complete attention
from her foster parents, she behaved inappropriately. She would hit her head on the floor, bite,
pull out her hair, have violent temper tantrums, break household objects, hit
other children and smear her feces on the wall.
The department reported that R.J. exhibited negative behaviors following
visits with mother and father.

The department was considering
offering father an additional overnight visit with R.J. He had completed a drug and alcohol
assessment, and it was determined that he did not require treatment. He intended to complete a parenting education
program. The social worker indicated
that father appeared to be motivated to have R.J. in his care, due to his
consistent progress in his case plan, and his agreement to participate in her
assessment with the foster parents.
Mother's visits were supervised.
The department was concerned about father's ability to set boundaries
with mother, because he had allowed her to visit R.J. during his
visitation. This was prohibited by the
department. It suggested father obtain
mental health counseling to assist him in his contact with mother.

Reports Prepared
for Sixth-Month Review Hearing

The department prepared two reports
for the six-month review hearing, recommending termination of reunification
services for both parents. It recounted
the following events:

In December 2009, father
was offered twice weekly overnight visits with R.J., but wanted only one
overnight per week. In January 2010, he
reported that his automotive business had failed and that he was struggling to
find employment. He had originally
believed that he would receive foster care money if R.J. were placed with him
and planned on using those funds for child care.

In February 2010, father engaged in
bi-weekly physical therapy with R.J. and weekly early intervention. The social worker reported that father was
attentive, interested and appropriately concerned with R.J.'s needs. By March, the social worker began receiving
reports that father's home was messy and his progress handling R.J.'s special
needs had declined. He had not obtained
a domestic violence assessment and
strongly maintained he did not need such counseling.

At a March 2010
concurrent planning meeting, father indicated he had not realized that taking
R.J. was a permanent commitment. He
believed he was to take R.J. only until mother completed her case plan. He indicated he felt overwhelmed and had a
lot to think about. It was reported by
several service providers that father had made statements regarding adoption
that reflected his conflict. He was
uncertain if it was the best choice for him to pursue R.J.'s placement. Father had stated, "'I am just going to
keep going with this until I screw up.'"
On March 31, father requested "a hold" on his weekly overnight
visit with R.J. The therapeutic services
that were previously provided in father's home on Thursday evenings and Friday
mornings (following visitation) were moved to a concurrent foster adopt
home. Mother had been incarcerated in
County jail.

Father had also delayed
completing the necessary paperwork to obtain benefits for his children. For over seven months, the department had
repeatedly asked him to apply for Medi-Cal.
He did so in April 2010 and was approved shortly afterward. The social worker had also asked father to
complete an application to enroll in CalWorks to determine if he qualified for
child care assistance. Father had not
completed the application as of May.

To comply with the court-ordered
"Wet and Reckless" program, father was required to take six education
classes and attend five meetings. He had
missed several classes. He was allegedly
dismissed from the program, and there is conflicting evidence as to whether he
had been reinstated. Father had not
entered the Community Action Program (CAP) to attend parenting classes, as required
by his case plan. He indicated he had
left three voicemail messages with CAP, but had not received a return telephone
call. Although the social worker had
obtained information for other parenting resources, father had not contacted
them.

Father was inconsistent with
visitation. He agreed to participate in
a weekly supervised visit which would include mother, as well as weekly
unsupervised visits without mother present.
Father missed five joint visitations because they would be "'too
emotional.'" The social worker
offered father an additional separate visitation with R.J., but he
declined. He began missing his regularly
scheduled unsupervised visits with R.J.
The social worker indicated that father had worked toward case plan
compliance at an extremely slow pace, disadvantaging R.J.'s need for
permanency.

The
department reported that R.J. became confused when father halted overnight
visits, then failed to attend several of his weekly daytime visitations. It was the social worker's opinion that
father's inability to commit to one overnight visit per week raised serious
doubts as to his ability to commit to providing fulltime care for R.J.

In addition to the
foregoing difficulties, father continued to struggle with the challenges posed
by his son, Cody. It was reported that
Cody had brought marijuana to school, stabbed another student with a pencil and
had been truant. Father admitted having
trouble controlling his son, but indicated no confrontational behavior was
tolerated in the home.

>Contested Six-Month Review Hearing

The juvenile court held a contested
six-month review hearing on May 28,
2010. At the time of the
hearing, R.J. was two years old. Father
was unemployed. He testified that he
felt he could now adequately parent R.J.
He stated that he initially believed that his care of R.J. was a
"temporary thing," until mother completed her case plan. Father discontinued overnight visits when he
discovered that R.J.'s placement with him could be permanent and he would have
full custody. He needed to "get the
pressure away . . . so [he] could make a clear decision."

The juvenile court indicated that it
was unable to find it likely that R.J. could be returned to either parent by
the 12-month date. It found, by a
preponderance of the evidence, that returning R.J. to her parents would create
a "substantial risk of detriment to her safety, protection, or physical or
emotional well-being." The court
described father's case plan compliance as "sketchy" and indicated
that he had relied on mother to reunify with R.J., so did not comply fully with
his case plan.

The court considered that, two
months before the six-month hearing, father indicated he was overwhelmed with
R.J.'s overnight visits and could not handle her special needs. The court acknowledged that he is a
"caring, concerned father," but found it was in R.J.'s best interest
to terminate reunification services. It
found by clear and convincing evidence that both parents failed to participate
regularly and make substantive progress in their case plans. It determined that the case plans were
reasonable and the services appropriate.
On June 9, 2010, the
juvenile court terminated reunification for both parents and set the matter for
a section 366.26 hearing.^[3] The court authorized supervised visitation by
father at the department's discretion.

>Writ Petition

Father filed a petition
for extraordinary writ review of the juvenile court's order terminating
reunification. He stated in his petition
that the juvenile court's findings were not supported by the evidence. He argues that he was not offered reasonable
services and that his case plan requirements were unreasonable. Father also alleged that R.J. should have
been placed with her siblings, who live with him, because he was the "non-offending
parent." He claims that the
department did not establish why R.J. could not have been placed with him,
pursuant to section 306. Father asserted
that terminating services violates the purpose of the dependency laws, and
would be detrimental to R.J.

DISCUSSION

When a child has been
removed from the physical custody of a parent, the juvenile court may order 12
months of reunification services.
(§ 361.5, subd. (a)(1)(A).)
If the child is under three years of age at the time of removal, the parents
are entitled to only six months of services.
(§ Id.,
subd. (a)(1)(B).) The court shall not
return the child to parental custody if it finds, by a preponderance of the
evidence, that the return of the child would "create a substantial risk of
detriment to the safety, protection or physical or emotional well-being of the
child." (§ 366.21, subd. (e).)


If the court finds by
clear and convincing evidence that the parent failed to "participate
regularly and make substantive progress in a court-ordered treatment
plan," it may set a section 366.26 hearing. (§ 366.21, subd. (e).) If, however, it finds that there is a
substantial probability that the child may be returned within six months, or
that reasonable services have not been provided, it must continue the case for
the 12-month permanency hearing. ( >Ibid.)

To determine whether
there is a "substantial probability" that the child may be returned
within six months, the juvenile court must find that the parent has regularly
visited the child; has made significant progress in resolving the problems that
led to the child's removal; and has "demonstrated the capacity and ability
both to complete the objectives of his or her treatment plan and to provide for
the child's safety, protection, physical and emotional well-being, and special
needs." (§ 366.21, subd.
(g)(1)(A)-(C).)

R.J. was removed from
mother's home due to neglect. Although
R.J. had never resided with father, he expressed a willingness to learn to
accommodate her special needs and possibly take her into his home. The reality of that undertaking appears to
have been overwhelming. Father was
initially consistent in his visitation and demonstrated a willingness and ability
to provide for R.J.'s special needs.

Father's progress in caring for R.J.
began to decline. He was offered two
overnight visits, but requested only one.
He had believed he would have temporary custody of R.J. until mother
completed her case plan. When he later learned placement would be permanent, he
expressed uncertainty over whether he was making the right decision and
discontinued overnight visits altogether.
Father began missing his regularly scheduled visitation. He did not enroll in parenting classes,
although provided with the resources to do so.


Father has not demonstrated the
capacity and ability to complete the objectives of his treatment plan and to
provide for the R.J.'s safety, protection, physical and emotional well-being,
and her special needs. The juvenile
court's finding that it would be detrimental to place R.J. in father's custody
is supported by substantial evidence.

According to father, his case plan
was unreasonable and services inadequate, but he does not specify the basis for
either assertion. He was offered liberal
visitation, parenting education, and training to enable him to meet R.J.'s
special needs. Services were offered for
drug and alcohol counseling, and it was determined that such treatment was
unnecessary. Substantial evidence
supports the juvenile court's finding that father's case plan was reasonable
and the services appropriate.

We reject father's
argument that R.J. should have been placed with her siblings. Where a child has siblings who are dependents
of the court, it must review the efforts made for sibling visitation and
placement. (See §§ 361.5, subd.
(a)(1)(C); 366, subd. (a)(1)(D)(i); 366.21, subd. (e).) R.J.'s half-siblings were not dependents, so
the court had no jurisdiction over them.
Moreover, the court's overriding consideration was whether R.J. should
be placed with father, not preservation of the sibling relationship.

Father also alleged that
the minor should have been placed with him because he was the
"non-offending parent," pursuant to section 306.^[4] That section applies to temporary custody and
placement issues at detention.
Application of section 306 is irrelevant because jurisdiction was taken
and the parties submitted on the dispositional orders, which included continued
foster care and reunification services.

The dependency statutes
require permanency for a child under three within a six-month period. While father's intentions were commendable,
his desire to care for R.C. and his ability to gain the necessarily skills,
were predicated on the belief that her placement with him would be temporary. When he discovered that he would have full
custody, father expressed serious doubts about his ability to undertake such a
responsibility and he ceased complying with his case plan. His testimony at the six-month hearing, that
he was now ready to parent R.J., came too late in the reunification process.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED.









COFFEE,
J.



We concur:







GILBERT, P.J.







PERREN, J.



Ginger
E. Garrett, Judge



Superior
Court County
of San Luis Obispo



______________________________





Frederick F. Foss for
Petitioner.



No appearance for
Respondent.



Warren R. Jensen, County
Counsel, Leslie H. Kraut, Deputy County Counsel, for Real Party in Interest.







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