In re Vanessa G.
Filed 1/7/13 In
re Vanessa G. CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re VANESSA G. et al., Persons
Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
Plaintiff and Respondent,
v.
ANTHONY G.,
Defendant and Appellant.
G046981
(Super. Ct. Nos.
DP020600,
DP020601)
O P I N I O N
Appeal
from an order of the Superior Court of
County, Richard Y. Lee, Judge.
Affirmed.
Shobita
Misra, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy
County Counsel, for Plaintiff and Respondent.
No
appearance for the Minors.
* * *
Anthony
G. (the father) appeals the court’s order terminating
daughters Vanessa and Erica.
name="_ftnref1" title="">[1]
He asserts the court lacked substantial evidence
to conclude that he received reasonable services and that returning his
daughters to his care would be detrimental.
We conclude these arguments lack merit.
He also asks this court to continue the 18-month review hearing for six
months. Because the father has not
demonstrated such a continuance is warranted, we deny his request and affirm
the order.
I
FACTS
Detention
In
November 2010, L.G. (the mother) and her boyfriend were arrested for burglary
at a retail store. The mother had E. in
her care at the time of the crime and when she was arrested. Several days later, the Orange County Social
Services Agency (SSA) filed a dependency petition pursuant to Welfare and
Institutions Code, section 300, subdivision (b),
alleged his whereabouts were unknown and that he had failed to ensure the
children’s needs were met. It was
further alleged there was an active domestic
violence restraining order, dated early November 2010 that prevented the
father from contacting the mother until 2015.
The court detained all three children. The teenagers were placed at Olive Crest.
SSA
prepared a report prior to the jurisdiction/disposition hearing. Research revealed a history of prior contacts
with the family. With respect to the father, in 2006,
allegations of general neglect due to domestic violence were
substantiated. The father also had a
criminal history dating back to 1994, including arrests for carrying a
concealed weapon, driving under the influence, domestic violence against the
mother, and probation violations. He was
also arrested in 2009 for possession of a controlled substance and had failed
to complete a court-ordered batterer’s program.
Vanessa,
age 14 or 15 at the time, reported that she had not seen the father in several
months. She told SSA the father had left
the home when she was approximately 12 years old, and her mother had told her
about domestic violence between the parents, although she had not witnessed it.
She recalled one
instance when police came to the home, and she said the father had a gun and
was acting “crazy.†She felt the father
should have helped them financially, and did not keep promises. Erica, age 13 at the time, reported her last
visit with the father was in the summer of 2010. She did want to visit him, but she felt the
father makes promises and breaks them.
The
father was contacted by SSA on December 10, 2010 and was interviewed several times
thereafter. He lived in Hemet.
He stated that he and the mother had divorced in 2008, and denied
domestic violence. He had not completed
the batterer’s program and claimed nothing had happened. He denied there was a restraining order,
stating he had never been served. He
also denied he had drug or alcohol problems.
He was unemployed and received food stamps, but had been denied for SSI
benefits. The father stated he had
sciatica and back problems as well as depression. He was not taking any medication and lacked
health insurance.
With respect to the
allegations against the mother, the father said he knew the children were left
unsupervised, and they had informed him about the mother’s drug use in the
bathroom of the motel where they resided.
He believed Vanessa had herpes and described both teenagers as
“crazy.†He said he was a “strict
parent†and the teenagers had not wanted to remain in his care because he would
be sure they were doing what they were supposed to do. He wanted the children to live with him, but
did not want to force them.
In December, Erica
disclosed that when she was 11 years old, the mother had a boyfriend who
exposed himself to her and watched pornography in her presence. The father admitted that Erica had told him
what happened, but he did not contact law enforcement. He told the mother and the maternal
grandmother and felt they could take care of the situation. This was at least in part because the mother
had full custody and because of the restraining order (the existence of which
he denied on at least one other occasion).
The
social worker believed the issue of drug abuse needed to be explored, based on
the father’s 2009 arrest and statements by the maternal grandmother. The father had told the maternal grandmother
that he and the mother had used drugs together.
On
December 14, 2010 the father signed the initial
case plan. The father was referred to
parenting education and counseling, drug abuse treatment, and a batterer’s
treatment program. He was advised to
locate a program in Riverside but to notify SSA if he wanted to
attend programs in Orange County.
He later chose to enroll in most services in Orange County.
He also requested bus passes, which were later provided. SSA arranged monitored visits which began by
mid-January. SSA reported that the
father was motivated to reunify, willing to participate in services, and to
travel long distances for visits.
In January 2011, SSA
amended the petition to allege the father’s unresolved drug problem and that
both parents had failed to protect the children from the risk of sexual
abuse.
In
late January, the father completed a parenting class at Olive Crest with
positive remarks from the instructor. He
was also consistent with his visits.
Despite this, however, he was sometimes inappropriate with the children,
telling them on the telephone on one occasion that he was participating in
services while the mother was not. He
also told Erica that he was not a “weirdo†and was never convicted of child
molestation. He also denied ever hitting
the mother. SSA informed the girls’ case
manager that the father must be told to desist if such remarks recurred in the
future.
On
February 16, both parents appeared in court for the combined jurisdictional and
dispositional hearing. The court found the allegations of the
amended petition true and that vesting custody with the parents would be
detrimental to the children. The court
ordered services for the father, including counseling, a domestic violence
program, and parent education classes.
The court also ordered the father to drug test for 90 days. If he missed a test, or had a positive or
diluted test, he would need to complete outpatient drug treatment. Otherwise, he would only need to test
thereafter upon suspicion.
As
of this review period, all three children had been placed together in a foster
home. The father continued to live in
Hemet, in a home he shared with six family members. He was unemployed, though he stated he was
looking for a job. His sources of income
were his mother and the $200 a month he received in food stamps. He also told SSA he had a suspended driver’s
license due to his failure to pay child support, and travelled to Orange County
by bus or train to participate in services and visits. The father also said he wanted to find a job
before following up on housing referrals.
The
father’s therapist reported the father was open and motivated. He missed three sessions, however, and had to
be reinstated into his anger management program. Although the father was referred to drug
testing near his home, he missed five tests in March and April, claiming he did
not have the contact information for the lab.
After completing a series of tests, he missed two more tests in May,
providing various excuses, and completed seven tests in June and July. Based on the court’s order for drug
rehabilitation if the father did not complete the 90 days of testing as
instructed, SSA provided him a referral for treatment. The father responded that he had tested for
60 days as ordered and he was “done.†He
declined to participate in treatment.
The
father was authorized for weekly visitation, but he insisted that visiting
every other week was sufficient. The
children’s caretakers reported that the father was appropriate, but cancelled
numerous visits. The social worker
recognized that the father was travelling a long distance via public
transportation, but indicated he was only seeing the children half as much as
authorized. SSA evaluated the father’s
overall cooperation and progress as “moderate.â€
At
the six-month review hearing in August, the court maintained jurisdiction and
ordered an additional six months of services.
The father was ordered to drug test for an additional 60 days without
any missed, positive or diluted tests.
If he failed to do so, he would be required to complete outpatient drug
treatment.
Twelve-Month Review
SSA
reported that after the six-month review hearing, the father began drug
testing. His test on August 22 was
positive for oxycodone. When asked about
the test by the social worker, the father said he had taken some old medication
for back pain. When asked to provide the
medication prescription or bottle, the father became upset and said the social
worker was “constantly throwing these curve balls at me.†The father eventually showed the social
worker a prescription bottle dated September 11, 2011 (after his positive test)
for “Hydroco/APAP.â€
The
social worker and a registered nurse reviewed medical records obtained from a
number of different providers. They
showed that the father had valid prescriptions for Norco, Vicodin and Motrin,
none of which, according to the registered nurse, would have resulted in a positive
test for oxycodone. The father had five
additional positive tests for oxycodone in October and November. While he had a number of negative tests, he
also missed several tests without excuses.
Accordingly, SSA referred the father to a substance abuse treatment
program, which he refused to attend.
When
the father visited the children, his behavior was appropriate, but on one
occasion he told them he did not have money, and asked the foster mother for
bus fare. He canceled 10 visits in
September and October, and he did not visit at all between mid-October and
mid-December.
On
October 21, the father had a minor heart attack and was in the hospital for
several days. The social worker
attempted to contact the father a number of times, but he did not respond until
November 8. At that time, he said he
wanted to meet the children halfway between their homes for visits. The social worker said that visits needed to
accommodate the children’s school schedules.
The father said he would follow up, but failed to do so. The social worker made several attempts to
contact the father.
In
January 2012, the court held a contested 12-month review hearing. The father testified that he had completed
programs in anger management and parent education as well as counseling. He admitted using methamphetamine in the past
“couple years†and said he had used marijuana and cocaine as a “kid,†but
denied having a current drug problem. He
did not believe a drug treatment program was necessary and did not want to
complete it. He attributed his positive
drug test to taking an old prescription for Percocet (which contains
oxycodone). He admitted missing several
tests, and was aware of the court’s order to complete a treatment program if he
missed a test. The social worker
testified that she believed the father had a drug problem due to his positive
test for oxycodone without a prescription for that medication, and his lack of
compliance with testing.
At
the hearing’s conclusion, the court found that reasonable services had been
provided and continued services for an additional six months. The court ordered the father to continue drug
testing and to complete an outpatient drug program. He was also ordered to see a doctor for an
assessment and to develop a pain management plan.
During
this period, the father continued to live in a three bedroom house in Hemet
with six relatives, including his sister, who SSA described as a “registered
drug offender.†He told the social
worker he would not follow up on housing referrals before the children were
placed with him. He was still unemployed
and his driver’s license was suspended.
The
father began an outpatient substance abuse program in February. He missed a number of meetings for various
reasons, and by April he had only attended seven out of 30 Narcotics
Anonymous/Alcoholics Anonymous meetings.
His drug counselor believed he was in denial and that he needed to
continue to drug test. He had a
prescription for Percocet, and as a result tested positive for oxycodone on a
number of occasions. He also missed a
number of tests in April and May. In
April, he was discharged from the treatment program for excessive
absences. His counselor believed the
father was abusing prescription drugs, and without completing treatment, his
prognosis was poor.
Visits
were somewhat inconsistent. At the
father’s request, visitation was changed from twice a week for two hours to
once a week for four hours. He cancelled
his first visit and did not visit until February 22. Visits generally went well, although on two
occasions he fell asleep while the children were playing in the other
room. Vanessa did not want to attend all
the visits with her parents. In April,
the social worker authorized two additional hours of visits per week. The father, although he reported moving to
Orange County, missed a visit in May.
Another visit in mid-May went poorly, with the father walking out of the
room after an argument with Erica.
Vanessa said Erica was upset because their parents were not doing
“everything to get them back.â€
Meanwhile,
both Erica and Vanessa experienced difficulties. Erica did not return to her foster home in
January, and was out of contact for two months until she contacted the
father. In February and March, Vanessa
ran away twice from her foster home.
Both had previously run away, and both girls admitted using drugs and/or
alcohol. One month after Erica returned
to foster care, she was found with marijuana and a pipe.
The
social worker recommended terminating services and implementing a permanent
plan. The father had not completed drug
testing or treatment successfully, and the social worker believed substance
abuse was at the core of the family’s issues.
Further, she believed the children had run away from foster care at
least partly out of frustration with the parents over the delay in
reunification. She felt it would be
unfair for them to continue to harbor false hope about reunification. She recommended long-term foster care for Vanessa
and Erica.
On
May 22, the court began a contested 18-month review hearing. The social worker testified about the
father’s lack of completion of drug treatment and the counselor’s opinion as to
his prognosis. She was also concerned
the father did not have the capacity to address Vanessa and Erica’s behavior
issues.
The
father testified that he was not addicted to narcotics, although he admitted he
had used them with some regularity for 10 years. He had also used methamphetamine two years
earlier. He claimed he was terminated
from his drug treatment program because his Medi-Cal coverage ended, and his
excessive absences were due to the lack of coverage. He did not inform SSA about the Medi-Cal
issue. He also testified that he wanted
the children placed in his care. He
stated his daughters could share a bedroom with his niece in the home he shared
with relatives in Hemet. He felt he had
not been treated fairly by SSA, and the need to drug test was holding him back
from employment.
The court heard argument
from counsel. Counsel for the children
joined in SSA’s recommendation. The
father’s counsel argued that given the father’s medical conditions, his lack of
transportation and his distance from the children, he had done all he possibly
could. In ruling, the court noted that
nearly all dependency cases had a tragic element to them, and this one was no
exception. The court believed the father
loved his children, but his statement that he would do anything for them was
not equal to his actions. The court
found the father’s residence was unsuitable for the children, and was concerned
about the children being placed in a home with the father’s sister, who had
substance abuse problems. Further, the
court expressed concern about the father’s progress in his case plan. The father’s testimony regarding his
termination from the drug treatment program was not credible, and even when
father attended, reports showed he was not actively participating. The court determined the father did have an
unresolved substance abuse problem, and his lack of understanding as to why the
court had ordered drug testing and treatment was another concern.
The court concluded
reasonable services had been provided to the parents, and it would be
detrimental to place the children with either parent. The court found, as to Vanessa and Erica,
that a permanent plan of foster care in a less restrictive setting was most
appropriate. The father now appeals.
II
DISCUSSION
Adequacy of Services
During
the initial stages of dependency
proceedings, family preservation, which necessarily includes family
reunification services, is the primary focus.
(§§ 319, subd. (b), 361.5, subd. (a); In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) “Dependency
law requires a ‘“good faith effortâ€â€™ to provide reasonable reunification
services ‘responding to the unique needs of each family.’ [Citation.]â€
(In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) “The adequacy of reunification plans and the
reasonableness of the SSA’s efforts are judged according to the circumstances
of each case. [Citation.]†(Robin V. v. Superior Court (1995) 33
Cal.App.4th 1158, 1164.)
The juvenile court’s finding that
reunification services were sufficient must be based on clear and convincing
evidence. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) When that finding is challenged on appeal, we
review it for substantial evidence. (
Cal.App.4th 758, 762.) We therefore
view the evidence in the light most favorable to SSA and draw all reasonable
inferences to uphold the court’s order.
(Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1010.)
The
father’s argument on this point is at best disingenuous and based on a selective
reading of the record. He highlights
every fact he believes supports his argument, including testimony the trial
court flatly rejected, such as the reason he was dismissed from the
substantially complied with his case plan, while on the other he claims he was
not offered an opportunity to fully comply because his case plan was not
tailored to his disabilities. Neither
argument is persuasive.
There
is more than substantial evidence that the father did not substantially comply
with his case plan. He highlights his
early progress, such as completing a parenting class and anger management class
in 2011. But at the 12-month review, the
court once again ordered both drug testing and treatment. The father unquestionably failed to complete
treatment, and while the court rejected this argument, he continues to claim on
appeal that this was due to his lack of insurance. The court had cause to reject this testimony,
including the fact that he never raised this issue with his social worker at
any time prior to the 18-month review and his continued denial that any
treatment at all was necessary. In any
event, we do not reweigh the evidence, as the father apparently asks us to
do. We merely conclude that the court’s
determination that the father’s explanation for failing to complete drug
treatment was not credible is supported by substantial evidence.
The
father’s reliance on Jennifer A. v.
Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) is misplaced.
In that case, there was no evidence the mother failed to complete
court-ordered treatment, and she completed 84 of 95 tests over the course of a
year. (Id. at pp. 1342-1343.)
The father points out this is the same period during which he was
required to test. Over the course of a
year, however, the father missed numerous tests (even when considering absences
the social worker excused), at one point refused to continue testing or to
enter treatment, and tested positive for oxycodone once without a valid
prescription. When he did enter
treatment, he failed to complete it.
Unlike the situation in Jennifer
A., the father here did not substantially comply — he was not even anywhere
close to doing so.
Further,
the services provided were more than adequate.
“[T]he record should show that the supervising agency identified the
problems leading to the loss of custody, offered services designed to remedy
those problems, maintained reasonable
contact with the parents during the course of the service plan, and made
in areas where compliance proved difficult . . . .†(In re
Riva M. (1991) 235 Cal.App.3d 403, 414.)
Substantial evidence demonstrates SSA’s efforts were more than
reasonable.
The
father claims he had various physical
disabilities, with his limitations increasing as the case progressed. He claimed SSA refused to alleviate his
hardship in travelling for visits, or to modify his drug testing program. The father was provided bus passes to
facilitate his travel, and when he asked to meet for visits halfway, he never
followed up on this with the social worker, despite her attempts to do so. Except for his hospitalization (which was
brief) and recovery period thereafter, he demonstrated he could travel to
Orange County, choosing to participate in services other than drug testing in
Orange County rather than closer to his home.
If the father felt that additional services were necessary, either he or
his counsel should have approached the court or SSA with a request. (In re
Ronell A. (1995) 44 Cal.App.4th 1352, 1365, fn. 6.)
Further,
much of the father’s emphasis on the lack of services is with regard to visits
and particularly missed visits, which the court did not rely on in choosing to
terminate services. Rather, the main
issues appeared to be the father’s failure to confront his substance abuse
problem and his lack of an adequate home to live with his daughters. With regard to housing, the father claims SSA
never offered him meaningful alternatives.
Yet the record shows that the social worker regularly followed up with
the father about his lack of appropriate housing, and he declined to make any
changes. The father also complains that
his random drug testing negatively impacted his job search, without providing
any persuasive evidence of this claim.
It is a particularly unpersuasive argument given the social worker’s
history of excusing him from missed drug tests when he had a valid excuse. We conclude the court’s finding that
reasonable services were provided was supported by substantial evidence.
Substantial Risk of
Detriment
At
the review hearing, the court must return a child to the custody of the parent
“unless the court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-being
of the child.†(§ 366.22, subd.
(a).) The failure to make substantive
progress in the case plan constitutes prima facie evidence of detriment. (Ibid.) We review the juvenile court’s finding that
returning the child to the parent would be detrimental for substantial
evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) We neither reweigh or express our own
judgment on the evidence. (
318.)
We
need not belabor this issue. The father
claims that the court’s finding of detriment was based on the “appear[ance]†of
an unresolved substance abuse problem, which itself was based on the
“speculations†of his recovery worker.
In fact, the court’s findings were based on the father’s own testimony
regarding his history of drug use, including his admitted lengthy history with
prescription painkillers, as well as his counselor’s informed opinion. His history of testing was spotty, he failed
to complete his treatment program, and claimed to have no idea testing or
treatment was ordered in the first place.
These facts constituted substantial evidence from which the court could
conclude the father did indeed have an unresolved substance abuse problem, and
it was clear he had not complied with his case plan. All of these facts support a finding of
detriment.
The
father’s citation to Blanca P. v.
Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.), in which this court criticized the juvenile court for
relying on vague statements regarding “internalize[ing]†parenting lessons, is
obviously distinguishable. Among other
things, in Blanca P., the abuse
allegations were debunked by an expert prior to the court’s findings of
detriment.
title="">[3]
(Id. at pp. 1745-1746.)
Further,
the father’s home was an inappropriate placement. He lived with six relatives in a
three-bedroom house, including a registered drug offender. His plan was to have two teenagers share a
bedroom with his niece. The court’s
conclusion that moving two teenagers with a history of running away to such an
environment would be detrimental was supported by more than substantial
evidence. It was particularly logical
given the father’s own substance abuse issues.
The court’s finding of detriment, therefore, was supported by
substantial evidence.
Continuance
The
father also claims that because reasonable services were not provided, and an
extension of reunification services would not be disruptive to the children’s
current placement, good cause exists to continue the 18-month review under
either section 352 or section 366.22, subdivision (b). As discussed above, we disagree that
reasonable services were not provided.
Further, the father has not demonstrated that any of the requirements of
section 366.22, subdivision (b) have been met.
Nor has he shown that any “exceptional circumstances†are present that
would otherwise warrant a continuance.
We therefore conclude no grounds exist to continue the matter.
III
DISPOSITION
The
court’s order is affirmed.
MOORE,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
name="_ftn1" title="">[1] The third child, E. is not part of this appeal, and is discussed
only as relevant. Vanessa will turn 18
in early February 2013. Erica is now 15
years old.
name="_ftn2" title="">[2] Subsequent statutory references are to the Welfare and Institutions
Code.
