Anthony M. v. Sup. Ct.

Filed 4/10/07 Anthony M. v. Sup. Ct. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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Anthony M. (petitioner), the father of minors G.M. and J.G. (the minors), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] (Cal. Rules of Court, rule 8.452.)^[2] He also requests a stay of proceedings in the respondent court. Petitioner contends there was insufficient evidence that return of the minors to his care would create a substantial risk of detriment. Because defendant has an extensive history of alcohol abuse and did not adequately comply with the components of his case plan designed to address this issue, we disagree. Accordingly, we shall deny the petition and the request for stay.

FACTUAL AND PROCEDURAL BACKGROUND

Dependency petitions were filed in March 2005 by the Yolo County Department of Employment and Social Services/Child Welfare Services (Social Services) regarding the minors based on allegations that petitioner had a lengthy history of alcohol abuse, including recent blackouts while cooking and while driving with the minors in the car. It was also alleged that the minors mother had been in a car accident several years earlier, which had left her mentally incapacitated.

Several referrals had been received concerning the family since 2002, when they moved to California from Texas. In September 2004, petitioner signed a voluntary family maintenance plan in response to the minors chronic truancy and petitioners problems maintaining the familys trailer in a sanitary condition. There had been prior concerns regarding petitioners admitted alcohol problem and the voluntary plan included a substance abuse assessment as well as referrals for alcohol abuse treatment. Petitioner reported that he was taking medication for a diagnosis of depression with psychotic features.

Petitioner was inconsistent in addressing the various problems that had been identified, and he tended to minimize his alcohol use. Immediately prior to the filing of the petitions, Social Services received a referral regarding petitioners blackouts. When contacted, petitioner seemed somewhat disoriented and his hands were tremoring when signing papers. The minors reported that, the previous night, petitioner had driven the family to the mall, where petitioner threw up in front of the minors and others.

Petitioner submitted on the issue of jurisdiction, and the allegations in the petitions were sustained. Prior to the dispositional hearing, petitioner completed a 30-day treatment program but relapsed on the same day. By the time of the dispositional hearing, petitioner had completed a second 30-day program. Reunification services were ordered, which included Alcoholics Anonymous (AA) meetings and outpatient treatment as well as participation in counseling to address petitioners depression and family issues.

Shortly after the dispositional hearing, petitioner again tested positive for alcohol, but he did not want to go into residential treatment. According to a report for the six-month review hearing, petitioner had been assigned a mental health counselor but had not met with her despite her repeated attempts to set up appointments. And although petitioner reported he was working with a sponsor and was on his fourth step in AA, he tested positive for alcohol again in November 2005 and was referred for residential treatment.

Petitioner completed a 60-day program, although he struggled during the first 30 days and left nine days before recommended by program staff because he felt he did not need to reside in the program any longer. According to a report prepared for the 12-month review hearing, petitioner still had not participated in counseling and was not attending three AA meetings per week, maintaining that a leg injury and poor weather prevented him from attending as frequently as required. However, although the social worker recommended termination of reunification services, the parties reached an agreement to continue services to the 18-month limit.

By the 18-month review, petitioner had completed a parenting class and was having weekly, unsupervised visits with the minors. However, according to the social workers testimony at the review hearing, petitioner had not participated in counseling or outpatient treatment since leaving the residential program. Petitioner told the social worker he did not feel he needed outpatient treatment and that working with a sponsor was sufficient to maintain his sobriety. In addition, the last time the social worker visited petitioners home, it was again unsanitary and unsafe.

Furthermore, petitioner had a pattern of oversleeping and picking up the minors late for visits, which had been the reason he was unable to get the minors up for school when they lived with him. He also called Social Services in the middle of the night and left demanding messages using foul language, which raised concerns for the social worker that petitioners mental health problems were not under control.

And although visits with the minors were generally positive, the minors reported that petitioner made derogatory comments about the social worker and told G.M., who had attention deficit hyperactive disorder, that they were trying to poison him by giving him medication. G.M. did not feel safe returning to petitioners care, and J.G. felt return would not be in her best interest.

The social worker testified it would be too much for [petitioner] to handle having the minors returned to him and that return would create a substantial risk to the minors. The social worker felt that petitioners lack of aftercare treatment contributed to the risk, in light of his history of extreme alcohol abuse and blackouts.

Petitioner testified he had been sober for over one year. He claimed he had been unable to attend counseling because he worked six days per week and the counseling program was in the morning. However, he later explained that his late night calls to Social Services were the result of his work hours, which were usually from 1:00 to 9:00 p.m. Petitioner also acknowledged that he stopped attending aftercare treatment when he obtained employment, which conflicted with the hours of the program.

Petitioner submitted proof of attendance at AA meetings, but the dates of attendance ended 10 months before the hearing. He testified that he had been attending meetings an average of once per week since then but his backpack had been stolen with most of his sign-in sheets and he forgot to bring proof of his most recent meetings. Petitioner admitted he had not attended meetings for more than one month and had not had a sponsor since the previous fall. He testified that he had gone through step four of the AA program, but when asked what he had learned from that step, he answered that he read AAs Big Book, from which he had gained a huge amount of information, such as case histories of other alcoholics. Petitioner disagreed with the social workers concerns that he might relapse, given everything . . . [he had] gone through, all of the treatment programs, detoxification, AA meetings, support groups, sponsors.

Following testimony, petitioners attorney argued that petitioner had substantially complied with the case plan and that there was insufficient evidence of a substantial risk to the minors if returned home.

The juvenile court disagreed, finding that returning the minors would create a substantial risk of detriment. The court noted: [W]hile the father believes he has great insight into his situation, hes made efforts, it seems to be only on his terms when he determines its enough.

DISCUSSION

Petitioner argues there was insufficient evidence that return of the minors would create a substantial risk of detriment to them. We disagree.

At an 18-month review hearing, [t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian 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. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court . . . shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; . . . ( 366.22, subd. (a).)

In the matter before us, substantial evidence supports the juvenile courts conclusion that neither petitioners efforts nor his progress in services justified return of the minors to his care.

While petitioner completed several short-term treatment programs, he provided various excuses for not participating in aftercare treatment and mental health counseling, and minimally attended meetings following his last residential program. By the 18-month review hearing, petitioner had not had a sponsor for several months and had stopped attending meetings. Furthermore, petitioners progress in AA was unconvincing--rather than working his way through the programs 12 steps, it appears petitioner had been stuck on the fourth step for some time and still was unable to explain what he had learned in that step. Although there was no evidence to contradict petitioners claim that he had been sober for more than one year, petitioner had maintained periods of sobriety in the past, each time followed by relapse, and it does not appear that his insight into his alcoholism had been altered significantly during the dependency proceedings.

Petitioner also had done nothing to address the issues underlying his mental health problems. Some of his behavior--such as oversleeping for visits, making inappropriate comments to the minors and leaving irate messages for the social worker in the middle of the night--suggested that these problems had not disappeared on their own. Yet, in all likelihood, such issues were at the core of petitioners alcohol abuse. The risk of relapse remained a substantial risk as long as petitioner failed to address these issues in any meaningful way.

Petitioner argues he substantially completed his drug [sic] treatment. It is true that a parent need not establish perfect compliance with the case plan if there has been substantial compliance with the plan. (See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.) However, the juvenile court could properly conclude that petitioners minimal attendance of AA meetings, combined with his failure to engage in counseling or aftercare treatment could not be construed as substantial compliance.

The juvenile courts characterization of petitioners efforts to comply with the case plan is apt: his efforts were only on his terms when he determines its enough. Substantial evidence supports the juvenile courts finding declining to return the minors under such circumstances.

DISPOSITION

The petition for extraordinary writ is denied. The request for stay is denied as moot.

MORRISON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] Further section references are to the Welfare and Institutions Code.

^[2] Further rule references are to the California Rules of Court.