Daniel A. v. Superior Court

Filed 8/7/06 Daniel A. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. David S. Cohn, Judge. Petition denied.

David M. Levy for Petitioner.

No appearance for Respondent.

Dennis E. Wagner, Interim County Counsel, and Dawn Stafford, Deputy County Counsel, for Real Party in Interest.

Petitioner Daniel A. (Father) is the father of two-year-old L.A. and one-year-old N.A. Father filed this writ petition pursuant to California Rules of Court, rule 38.1 challenging an order setting a Welfare and Institutions Code section 366.26^[1] permanency planning hearing as to the children. Father contends that the juvenile court erred in finding that reasonable services had been provided and in denying his request for an additional six months of reunification services. For the reasons provided below, we reject Father's challenge and deny his petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

Mother had given birth to N.A. in June 2005, and both Mother and baby had tested positive for methamphetamine. The baby weighed four pounds, three ounces, and had to remain at the hospital for eight days. When the social worker visited Mother's apartment two days later, Mother was not bonding with the baby, had no desire to take care of her children, and appeared to be under the influence. The apartment was described as filthy and the children dirty. Four children and four adults had been living at the two-bedroom apartment; and the condition of the apartment appeared unsafe for the children. Mother's four children were subsequently taken into protective custody.^[2]

On July 1, 2005, the San Bernardino County Department of Children's Services (DCS) filed section 300 petitions pursuant to section 300, subdivisions (b) and (g). Allegations against Mother related to substance abuse, and failure to provide adequate care, housing, supervision, and necessities. Allegations against Father pertained to his failure to protect the children and his whereabouts being unknown.

At the July 5, 2005, detention hearing, an attorney represented Father who had been located in state prison. The children were removed from the parents and placed in separate foster homes.

The jurisdictional/dispositional hearing was initially set for July 26, 2005, but continued several times to give proper notice to the father of Mother's other two children, and to transport Father to the jurisdictional/dispositional hearing from state prison. Father first appeared on September 2, 2005, in custody.

The jurisdictional/dispositional hearing was eventually held on November 15, 2005. At that time, the children were declared dependents of the court and maintained in confidential foster homes. The juvenile court found the allegations in the petitions true as amended, and also found Father to be the presumed father of L.A. and N.A. Mother and Father were granted reunification services and ordered to participate. The court ordered Mother to drug test that day, and also ordered DCS to submit an informational packet in regards to Father's case plan.

On January 5, 2006, the social worker filed Father's case plan with the court. Father's case plan required Father to participate in general counseling, parenting education, substance abuse services, and substance abuse testing. His objectives were to show an ability and willingness to have custody of the children, provide a safe home for the children, comply with all court orders, maintain regular visitation/contact with the children, stay free from alcohol and controlled substances, comply with required drug tests, avoid arrests and convictions, not use physical punishment, abide by all conditions of parole/probation, maintain a stable and suitable residence, monitor the children's well-being, support and nurture the children, and adequately parent the children.

On February 9, 2006, a subsequent petition was filed on behalf of the children pursuant to section 342, subdivision (j), based on allegations of abuse of sibling. Based on the detention report, Mother had apparently shot a pellet gun at L.A.'s and N.A.'s half-sibling, J.R., in November 2005, and the pellet had remained lodged in J.R.'s head. Mother had claimed it was an accident. Father was in another room when the incident occurred. Mother had subsequently pleaded guilty to willful harm or injury to a child (Pen. Code, § 273a), and was awaiting sentencing.

Father had apparently been released from prison sometime in November 2005, but had been confined in jail by February 2006 on a parole violation.

On February 24, 2006, the juvenile court found the allegations in the subsequent petition true, and moved the six-month review hearing to May 9, 2006.

In a status review report dated May 9, 2006, the social worker recommended the parents be provided with additional reunification services. Father was incarcerated in state prison with a release date of November 2006, and had begun working on several objectives of his service plan, such as counseling, substance abuse classes, and parenting classes. The record indicates that Father's new social worker mailed Father a copy of his service plan on March 28, 2006, who was then in state prison. The record also notes that Father had signed his service plan on April 5, 2006, and returned it to his new social worker who had since replaced the original social worker. Father's present social worker noted that she had monthly contact with Father via written communication, which included a self-addressed stamped envelope to enable him to respond to her.

The caretaker's record of contacts indicates that Father and Mother had a one-hour monitored visit with the children on November 22, 2005. At that visit, Mother appeared with â€