E.R. v. Super. Ct.
Filed 12/5/13
E.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
E.R.,
Petitioner,
v.
THE SUPERIOR COURT OF
FRESNO COUNTY,
Respondent;
FRESNO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
F067995
(Super. Ct. No. 08CEJ300111)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
E.R., in
propria persona, for Petitioner.
No
appearance for Respondent.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
E.R.
(father) in propria persona seeks an extraordinary writ from the juvenile
court’s orders issued at a contested dispositional
hearing denying him reunification services and setting a Welfare and Institutions
Code section 366.26 hearing
name="_ftnref2" title="">[1] as to his 17-year-old daughter, Angelique, and
seven-year-old son, Ralph. Father contends
there was insufficient evidence to support the denial of services order. He asks for an order granting him
return of the children to his custody. We
deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In February
2013, a social worker from the Fresno County Department of Social Services
(department) and a police officer conducted a welfare check on then 16-year-old
Angelique and six-year-old Ralph at the home where they lived with father and
their mother. Father and mother were
reportedly using drugs and the home was unlivable with no electricity.
The police officer confirmed the unsafe
condition of the home. Father told the
officer mother was mentally ill and he suspected she was prostituting. He said mother used illegal drugs which he
sometimes purchased for her rather than have her purchase it herself on the
streets. He also said he last used PCP
(phencyclidine) three months before.
Mother told the officer she and
father used methamphetamine and had done so the evening before. She said father bought methamphetamine for
her from his “dealers.â€
During the course of the welfare
check, the officer discovered a stolen vehicle in the backyard. Father and mother were arrested and Angelique
and Ralph were taken into protective custody by the social worker.
According to departmental records,
this was not the first time Angelique and Ralph were taken into protective
custody. In April 2008, the department
removed them from mother’s custody because of mother’s methamphetamine
use. At the time, father was incarcerated
for domestic violence. The juvenile
court ordered mother and father to participate in
substance abuse specialist he first used cocaine at the age of 18 and had regularly
used it for four years. He reported he
last used cocaine in May of 1988 but also reported having a problem with
cocaine and no period of abstinence from it.
He also reported using amphetamines for three years, his last date of
use being December 2007. He said he had
an “extreme†need for drug treatment.
The substance abuse specialist reported that father “openly disclosed
his past substance abuse history,†which included use of marijuana, cocaine and
methamphetamine. On the specialist’s
recommendation, the department referred father for intensive outpatient
substance abuse treatment which he completed in April 2009. In March 2010, the family successfully
reunified. The juvenile court
subsequently dismissed its dependency
jurisdiction.
In February 2013, the department
filed a juvenile dependency petition on behalf of Angelique and Ralph. The juvenile court ordered the children
detained pursuant to the petition and ordered the department to provide mother
and father services, including substance abuse and mental health evaluations
and random drug testing. The department
placed the children with their paternal grandparents.
In March 2013, the juvenile court
adjudged the children dependents of the court and set the dispositional hearing
for April. The dispositional hearing was
continued and ultimately conducted as a contested hearing in September 2013.
Meanwhile, in April 2013 mother
told the social worker she left home and was staying in a women’s shelter
because father choked her, leaving bruises.
She showed the social worker a copy of the restraining order against
him. Also, during the interim, the
department filed its dispositional report stating mother and father had not
utilized the services offered and recommending the juvenile court deny them reunification
services under section 361.5, subdivision (b)(13) because of their extensive
and chronic drug abuse and resistance to treatment.
In September 2013, the juvenile
court convened the contested dispositional hearing. Father argued section 361.5, subdivision
(b)(13) did not apply to him because there was insufficient evidence he had an
extensive history of drug use. He called
social worker Ashleigh Laboy who conceded there were no allegations against
father in the petition filed in 2008 or any evidence he was using drugs at that
time. However, she testified he
disclosed prior drug use during his 2008 substance abuse evaluation and disclosed
using PCP three months before Angelique and Ralph were removed in February 2013. In addition, mother disclosed she and father used
drugs together after Angelique and Ralph’s removal in February 2013.
Angelique testified she saw mother
using drugs but not father.
Father testified he was
incarcerated for domestic violence
and expected to be released from custody in November 2013. He admitted using PCP in late 2012 but denied
using drugs before he was incarcerated in 2008 and denied using methamphetamine
with mother.
At the conclusion of the hearing,
the juvenile court ordered the children removed from mother and father’s
custody. The juvenile court also found
that section 361.5, subdivision (b)(13) applied to mother and father and that
it would not be in the children’s best interests to offer mother and father
reunification services. Consequently,
the juvenile court denied mother and father reunification services as
recommended and set a section 366.26 hearing.
This petition ensued.
name="_ftnref3" title="">[2]
DISCUSSION
Father contends the juvenile court
erred in denying him reunification services under section 361.5, subdivision
(b)(13) because there was no documentary evidence of his drug use such as
positive drug test results. We find no
error.
Subdivision (b)(13) of section 361.5
states, in pertinent part, that
“[r]eunification services need not be provided to a
parent … when the court finds, by clear and convincing evidence, … [¶ ] …
[¶ ] (13) [t]hat the parent … has a
history of extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a three-year
period immediately prior to the filing of the petition that brought that child
to the court’s attention .…â€
In reviewing the juvenile court’s finding ─ that father came
within the exception for services set out in subdivision (b)(13) ─ we
determine whether it is supported by substantial evidence. (Amber K. v. Superior Court (2006) 146
Cal.App.4th 553, 560.) That is, we
determine whether there is reasonable, credible evidence of solid value such
that a reasonable trier of fact could have made the challenged finding. (In re Brian M. (2000) 82 Cal.App.4th
1398, 1401.) Under this standard we view
the evidence in a light most favorable to the juvenile court’s ruling,
indulging all legitimate and reasonable inferences in its favor. (See In re Misako R. (1991) 2
Cal.App.4th 538, 545.)
We conclude substantial evidence supports the juvenile court’s order
denying father reunification services. Though
father correctly asserts the department did not produce positive drug test
results to prove his drug use, there is ample evidence from which the juvenile
court could infer that his drug use was extensive and ongoing. Specifically, the department established the extensiveness
of father’s drug use by offering a copy of his 2008 substance abuse evaluation
in which he admitted a history of abusing cocaine and methamphetamine and an
extreme need of drug treatment. Based on
his drug use history, he was court ordered to complete intensive outpatient
substance abuse treatment which he accomplished in 2009. There is no subsequent direct evidence of
father’s drug use except his admission he used PCP in late 2012. However, the juvenile court could reasonably
infer father was using drugs when Angelique and Ralph were removed in February
2013 based on his history and admission he purchased methamphetamine for mother
and mother’s statement they used methamphetamine together. Consequently, there is sufficient evidence
father’s drug use was extensive and that he resisted drug treatment by using
drugs within three years prior to the filing of the instant petition in 2013.
In light of the foregoing, we conclude the juvenile court properly applied
section 361.5, subdivision (b)(13) to father. Since father does not challenge the juvenile
court’s finding it would not serve the children’s best interest to nevertheless
provide him reunification services, we will not address it.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
