S.M. v. Superior Court
Filed 5/21/13 S.M. v. Superior Court CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
S. M.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN
FRANCISCO COUNTY,
Respondent;
SAN
FRANCISO HUMAN SERVICES AGENCY,
Real Party in Interest.
A138008
(San
Francisco County
Super. Ct.
No. JD11-3183A)
S.
M., the father of I. M., age 4, and M. P. II, age 3, (collectively, the
children) petitions this court to set aside the juvenile court’s order setting
a permanent plan hearing pursuant to Welfare and Institutions Code
section 366.26. He contends that the
court erred in terminating reunification
services. We deny the petition.
FACTUAL BACKGROUND
On
June 16, 2011, the children
were referred to the San Francisco Human
Services Agency (the Agency) after a domestic violence incident at parents’
home. During the incident, parents
engaged in a verbal and physical altercation which was witnessed by the
children and during which mother punched M.P. II three or four times with a
closed fist. Father called the police,
who arrested mother.
On
June 16, 2011, a section 300 petition was filed alleging that the children were
at risk of serious physical harm as a result of the
result of the failure or inability of parents to protect them given parents’
history of recent and severe domestic violence.
The petition further alleged that mother had a substance abuse history
which included alcohol, methamphetamines, and crack cocaine, and a criminal
history which included drug sales and possession and an anger management
problem. The petition also alleged that
father had an anger management problem
and a criminal history including drug sales and possession. On June
20, 2011, the children were detained and placed with father. The court also issued a temporary restraining
order (TRO) against mother prohibiting her from contacting father or the
children except as required for court-ordered visitation.
On
July 22, 2011, the court
entered another TRO against mother prohibiting her from contact with the
children and father because the prior TRO had been withdrawn based on mother’s
representation that a criminal order was in place. The criminal order, however, had not been
produced to counsel. On August 4, 2011, the court entered a
one-year restraining order against mother.
The order allowed mother to have supervised visitation with the
children. The court set the matter for a
settlement conference to be held on August
31, 2011.
The
Agency’s report, filed on August 4,
2011, noted that parents intended to separate and were living
apart. Father continued to live with the
children. Mother was currently on
probation for drug possession; her term of probation had been extended to four
years following the domestic violence incident.
Mother was required to participate in a treatment program to address
substance abuse and domestic violence issues as a condition of probation.
The
Agency reported that father was caring for the children and had agreed to
participate in parenting and counseling services. He also continued to be employed. The Agency noted that father had a criminal
record and was on probation for three years as a result of a conviction for a
drug offense. The Agency recommended
that father be given family maintenance services and that supportive services
be offered to mother.
On August
24, 2011, prior to the scheduled settlement conference, parents
were arrested in the presence of their children at mother’s apartment. The arrests were made pursuant to a
warrant. The charges against parents
included false imprisonment, unlawful entry, burglary, and kidnapping which
allegedly occurred during a home invasion.
an amended section 300.
On
August 29, 2011, the court
ordered the children detained and placed them in the care of a maternal
aunt. Parents remained incarcerated.
The
dispositional and jurisdictional hearing was held on November 1, 2011.
The court found the allegations of the first amended section 300
petition concerning parents’ failure to protect the children and their August
2011 arrests to be true. The court
further found the allegation that parents disregarded the restraining order
entered on August 4, 2011, limiting mother’s contact with the children to
supervised visits, to be true in that father took the children to mother’s
apartment. The court continued the
children’s placement with the maternal aunt and ordered reunification services
for parents. The court noted additional
facts for removal of the children including domestic violence and anger
management issues, substance abuse, that parents were on probation, and
parents’ disregard of the restraining order.
On
November 30, 2011, the
court modified the restraining order to exclude father from its ambit in order
to allow parents to engage in supervised visitation with the children.
The
six-month review hearing was held on April
19, 2012. The Agency reported
that the children were now living with their paternal great-aunt. Father was having one unsupervised weekly
visit with the children at his home or at a nearby playground as well as a
weekly visit at the paternal aunt’s home.
He had tested negative for drugs five times but had missed tests in
February and March due to two deaths in his family in February. Father was also participating in both
court-ordered reunification services with her probation requirements. She was participating in domestic violence
and parenting classes, but had not found a residential program.
The
Agency reported that it anticipated father would be ready for return of the
children within six months and therefore recommended a continuation of
reunification services.
On
August 10, 2012, counsel for the children filed an application for an
visits by father because of a report that the children witnessed father
involved in a shooting less than a block from their placement, and that mother
had visited the children unsupervised in violation of the court’s order.
to have supervised visitation. On April
19, 2012, the court ordered that reunification services be continued for six
months, and set the 12-month review hearing for October 18, 2012.
In October 2012, the Agency reported that
mother was again incarcerated. Father
stopped attending his parenting and anger management classes in late June
2012. Father had also stopped attending
his domestic violence classes in July 2012.
The Agency opined that the two deaths in father’s family had affected
his ability to successfully participate in his reunification services. Father indicated that he planned to return to
his domestic violence classes in September 2012. The Agency recommended that reunification
services be terminated because neither parent was close to reunification. It noted that M. P. II was under three at the
time of removal, and consequently parents were entitled to only 12 months of
reunification services. The Agency
recommended adoption as the permanent plan, stating that two different family
households were interested in adopting the children.
On
November 19, 2012, the court continued the matter for a contested 12-month
review hearing. The Agency filed an
addendum report before the hearing. It
stated that father had missed several visits with the children. Father, however, began unsupervised visits
with the children in December and these visits went well. The Agency subsequently learned in January
2013 that the police found drugs on father prior to the visit with mother at
the county jail on December 8, 2012. It
opined that father’s visits to mother at the jail were in contravention of a
current stay-away order.
In
the addendum report, the Agency reiterated its recommendation that
reunification services be terminated for parents. It was concerned that father had not been
able to stay away from mother even when she was in jail despite the restraining
order. The Agency further reported that
it had recently learned that father was convicted in October 2012 of
misdemeanor burglary and that he was on probation. Father had not informed the Agency of the
conviction or his probation status.
The
12-month review hearing was held on February 21 and 22, 2013. The Agency’s protective service worker testified
that she was concerned that father would permit mother to have unsupervised
contact with the children. She also
testified that she had difficulty trusting parents about the truth of their
statements because she was not told that father was visiting mother in jail and
father did not report being placed back on probation in the fall.
The
court found that although father had substantially complied with his service
plan, it had concerns about father’s ability to keep the children safe,
particularly given father’s failure to make good decisions and to be
forthcoming about certain events that occurred during the dependency
period. The court found that conditions
still existed that created a substantial risk of detriment if the children were
returned to father. The court terminated
reunification services and set the matter for a section 366.26 hearing.
DISCUSSION
Father
challenges the juvenile court’s order terminating reunification services and
finding that it would be detrimental to return custody of the children to
him. We conclude that the record fully
supports the court’s order.
The
substantial evidence test is the appropriate standard of review. (In re
Henry V. (2004) 119 Cal.App.4th 522, 529.)
“ ‘In juvenile cases, as in other areas of the law, the power of an
appellate court asked to assess the sufficiency of the evidence begins and ends
with a determination as to whether or not there is any substantial evidence,
whether or not contradicted, which will support the conclusion of the trier of
fact. All conflicts must be resolved in
favor of the respondent and all legitimate inferences indulged in to uphold the
verdict, if possible.’ †(
820.) We thus apply the substantial
evidence test to determine whether the record shows clear and convincing
evidence of “a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the minor . . . and there are
no reasonable means by which the minor’s physical health can be protected
without removing the minor from the [parent’s] physical custody.†(§ 361, subd. (c)(1);
Here,
although father made progress in meeting the requirements of his reunification
plan including visitation, parenting and domestic violence classes, his
progress was inconsistent. In addition,
he continued to have issues which reflected negatively on his ability to keep
the children safe. He was arrested in
August 2012 for misdemeanor burglary and thereafter convicted and placed on
probation. He, however, neglected to
inform the Agency of his conviction and probationary status. Moreover, also in August 2012, the children witnessed
father with a gun. While father
explained that he was trying to diffuse a situation in which others were
shooting at one another, the fact that the children saw father in this
situation, albeit at a distance as it occurred a block from where they were
situated, demonstrated father’s inability to make good decisions and safely
parent the children. The record further
revealed that in December 2012, father was at the county jail visiting mother
when drugs were found in the visiting area.
was not allowed to visit anymore at the jail.
The
need to address the issue of the children’s safety was at the core of father’s
reunification plan, for it was parents’ domestic violence which brought the
children before the dependency court.
The record demonstrates that at the time of the 12-month review hearing,
which was held on February 21 and 22, 2012, the children had been dependents of
the court for 20 months, well past the 18 months allowed for reunification
under our statutory scheme. (§ 361.5,
subd. (a)(3).) The Agency had provided
reasonable reunification services; but father failed to avail himself of all of
the opportunities he was afforded for reunification. His lapses in judgment, several occurring in
the months before the 12-month review hearing, demonstrated that he could not be
counted on to provide a safe home for the children. If a parent “waits until the impetus of an
impending court hearing to attempt [to correct his or her behavior], the
legislative purpose of providing safe and stable environments for children is
not served by forcing the juvenile court to go ‘on hold’ while the parent makes
another stab at compliance.†(
1448, 1463, fn. 5.) Substantial
evidence supports the juvenile court’s decision to terminate reunification
services and to set a section 366.26 hearing.
III. DISPOSITION
The
petition for an extraordinary writ is denied on the merits. (§ 366.26, sub. (l).) Our decision is final
in this court immediately in the interests of justice.
_________________________
Rivera,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Humes, J.
name="_ftn1" title="">[1]
All further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
The parties stipulated during the 12-month review hearing that the charges were
dismissed.
