Michael B. v. Superior Court
Filed 12/10/12 Michael B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MICHAEL B.,
Petitioner,
v.
THE
SUPERIOR COURT OF TULARE COUNTY,
Respondent;
TULARE
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
F065816
(Super. Ct. No. JJV065562D)
O P I N I
O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Michael
B., in pro. per., for Petitioner.
No
appearance for Respondent.
Kathleen
Bales-Lange, County Counsel, and Abel C. Martinez, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
Michael B. in propria persona seeks an extraordinary writ (Cal.
Rules of Court, rule 8.452) from the juvenile court’s orders issued at a
Welfare and Institutions Code section 366.26 hearing
daughter L.B.
name="_ftnref3" title="">[2] We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Michael
and Rebecca
title="">[3] are the parents of Melody,
Zachary, Robert and L.B., the subject of this writ petition. Rebecca has a history of drug abuse and
Michael has a history of not protecting his children from her. In August 2011, the juvenile court ordered
Melody, Zachary and Robert removed from Michael and Rebecca’s custody and
ordered a plan of reunification for them.
In July 2012, after 12 months of reunification services, the juvenile
court terminated their services and set a section 366.26 hearing for November
2012. Michael challenged the juvenile
court’s setting order by writ petition which this court denied (F065363).
These dependency
proceedings were initiated in August 2012 when Rebecca gave birth to L.B. at 32
weeks gestation with the assistance of paramedics in the home of L.B.’s
paternal grandmother (grandmother).
Rebecca and L.B. were transported to the hospital and admitted. Rebecca was released the following day.
Rebecca denied
using drugs during her pregnancy. She
told a social worker that she voluntarily entered inpatient drug treatment two
weeks before giving birth to L.B. but left after four days. She said she was homeless and relied on
Michael for support but could not be with him because of their child welfare
case.
At the hospital,
L.B.’s nurse told a social worker from the Tulare County Health and Human
Services Agency (agency) that L.B. exhibited mild signs of possible drug
exposure and was monitored for 36 hours.
During that time, she quivered and did not wake up to be fed; however,
her symptoms subsided.
Approximately a
week after L.B.’s birth, a social worker spoke to Rebecca outside the
grandmother’s home. While they were
talking, the grandmother closed the gate to the property. When the social worker asked Rebecca if she
could enter the home to check the residence, Rebecca said she would need a few
days to clean. She said she was living
with the grandmother, but was homeless and was not prepared to care for
L.B. The social worker told Rebecca that
L.B. would be placed in protective custody
and scheduled a meeting to discuss the situation. She asked Rebecca to inform Michael and any
other family members who wanted to attend.
No one attended the meeting, but Michael went to the agency office later
in the day and identified himself as L.B.’s biological father. He denied he was in a relationship with
Rebecca, stating he had not had any contact with her in weeks. He also denied knowing that Rebecca left a
drug treatment program. Rebecca’s drug
and alcohol guide at the treatment center, however, stated that she was with
Rebecca when Rebecca telephoned Michael and told him to pick her up.
The agency filed
a dependency petition on L.B.’s behalf, alleging under section 300, subdivision
(b) that Rebecca’s drug use and Michael’s failure to protect L.B. placed L.B.
at a substantial risk of suffering serious physical harm. In support, the agency further alleged in
part that L.B. was exhibiting symptoms commonly associated with in utero drug
exposure. The agency also alleged under
section 300, subdivision (j) that Rebecca exposed Robert to drugs in utero, was
provided reunification services which were terminated, and that L.B. was at
risk of suffering similar abuse or neglect.
In late August
2012, the juvenile court convened a detention
hearing on the dependency petition and appointed counsel for Michael and
Rebecca. The juvenile court asked
whether L.B. was still in the hospital and Rebecca responded that she was as
far as she knew. The social worker
stated that L.B. had been released the previous day and placed with her
siblings in foster care. The juvenile
court received the detention report into evidence without objection, found that
Michael is L.B.’s biological father, and ordered her detained. The juvenile court also ordered supervised
visits and set a contested jurisdictional hearing for September 2012.
Prior to the
hearing, the agency filed a jurisdictional/dispositional report recommending
that the juvenile court exercise its dependency jurisdiction under
section 300, subdivisions (b) and (j) and deny Rebecca and Michael
reunification services; Michael because he is L.B.’s biological father and had
not shown it would be in L.B.’s best interest that he receive reunification
services. The agency stated it was not
plausible that Michael was no longer in a relationship with Rebecca or that he
did not know of her substance abuse. The
agency further reported that the children’s foster parents wanted to adopt all
four of them.
In September
2012, the juvenile court convened the contested jurisdictional hearing. Michael and Rebecca appeared represented by
counsel and waived their right to a hearing on the matter. The juvenile court sustained the petition and
adjudged L.B. a dependent child under section 300, subdivisions (b) and
(j). Subsequently, Rebecca’s attorney
stated they were not contesting the disposition and Michael’s attorney stated
they were “submitting also.†The
juvenile court denied Rebecca and Michael reunification services as recommended
and set a section 366.26 hearing.
Michael filed a
writ petition challenging the juvenile court’s setting order. He also filed a request to augment the record
which this court denied.
DISCUSSION
Michael
contends that the agency was deceptive in its dealings with the juvenile court
and with him, all in an effort to facilitate adoption of his children. Specifically, he contends: (1) the agency withheld the results of L.B.’s
toxicology report that would have shown she did not test positive for drugs;
(2) the agency did not consider that L.B.’s withdrawal-like symptoms could have
been caused by her premature birth; (3) the agency released L.B. from the
hospital to the foster parents without informing Michael or Rebecca; (4) the
social worker did not identify herself as such when she visited Rebecca at the
grandmother’s property and tried to gain access to a residence Rebecca did not
own; (5) the agency inaccurately reported that there were no baby items for
L.B.; and (6) the agency refused to accept proof of his competence as a
caregiver.
There
are several problems with Michael’s contentions. First, there is no evidence that the agency
attempted to deceive the juvenile court into believing that L.B. was born with
drugs in her system. Rather, the agency
alleged in the petition that L.B. was “exhibiting symptoms commonly associated
with being a drug exposed infant such as premature birth and being
underweight,†not that she tested positive for drugs. Further, though L.B.’s test results are not in
the record, there is no evidence that the agency deliberately withheld them
from the juvenile court. Since L.B.’s
drug-exposed-like symptoms were only one allegation in support of sustaining
the petition, there was no need for the agency to follow up with the results or
consider other possible explanations for her symptoms.
As
to the agency’s failure to inform Michael and Rebecca that L.B. was discharged
from the hospital, Michael fails to explain how the failure to inform him
influenced the juvenile court’s ruling or why he could not have obtained L.B.’s
discharge date himself. As far as the
social worker’s conversation with Rebecca at the grandmother’s house, that information
was included in the agency’s detention report which was admitted into evidence
without objection. Having failed to
object to its contents at the detention hearing, Michael forfeited his right to
now challenge it on appeal. (Evid. Code,
§ 353.)
Finally,
Michael contends the agency faulted him for not reunifying with L.B.’s
siblings, but did not properly credit him for programs he completed. To that end, he refers this court to
documents attached to his request for augmentation which was denied. In light of that denial, we will not review
the documents or Michael’s argument with respect to them.
We
find no error on this record and deny the petition.
DISPOSITION
The petition for
extraordinary writ is denied. This
opinion is final forthwith as to this court.
Cornell, Acting P.J., Gomes, J., and Kane, J.
Welfare and Institutions Code unless otherwise indicated.
