David R. v. Superior Court

Filed 4/17/06 David R. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

David R., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26^[1] hearing as to his son, D. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings were initiated in June 2005 by the Fresno County Department of Children and Family Services (department). At the time, petitioner, D.'s presumed father, and Jacqueline,^[2] D.'s mother, were living together with Jacqueline's then four-year-old daughter C. and two-year-old son A. by another relationship. Family circumstances were strained by petitioner and Jacqueline's drug and alcohol abuse, domestic violence and petitioner's unemployment. C. was staying with her maternal grandmother in Long Beach.

On June 3, 2005, then four-month-old D. was rushed to the emergency room with massive facial petichiae (small red spots) and bilateral scleral hemorrhages (bleeding in the white tissue covering the eyeball), which the examining physician concluded were consistent with strangulation. Further medical evaluation revealed that D. also had a significant left subdural hematoma.^[3]

Neither petitioner nor Jacqueline could explain D.'s injuries. Jacqueline claimed she left D. in petitioner's care from the time she left for work at approximately 6:55 a.m. on June 3 until she returned at approximately 8:30 p.m. As soon as she returned home, she looked in on D. who was sleeping in a bedroom. She did not notice anything unusual about him and went to the store to buy some beer. When Jacqueline returned, petitioner was smoking outside their apartment. She entered the apartment and heard D. crying a horrible cry. She rushed in and saw that his face was very dark, black and purple with little red dots all over his face as if he were wearing a mask. She tried to pat his back and blow on his face to comfort him. When he did not respond, she immediately called emergency services.

Petitioner claimed that he placed D. wrapped in a blanket in the baby swing and secured D. in the swing with a seat belt that crossed over him. Once D. fell asleep, petitioner left him alone for about an hour while he went to another apartment to perform some maintenance work. When he returned, he found D. crying and red-faced and breathing abnormally with his hands raised. Petitioner noticed that D. had slid down in the swing and that the seat belt was up around his chest. Petitioner called an ambulance.

The department took D. and A. into protective custody and arranged with Los Angeles County to have C. returned to Fresno and placed in foster care with her siblings. The department filed an original dependency petition on the children's behalf, alleging that petitioner and Jacqueline endangered their children by their substance abuse and unaccounted for deliberate infliction of serious injury upon D. (§ 300, subds. (a) (serious physical harm) & (b) (failure to protect).)

Petitioner and Jacqueline appeared at the detention hearing and denied the allegations. The court ordered the children detained and set the matter for mediation. The court also ordered the department to refer the parents for parenting, substance abuse and mental health evaluations and any recommended treatment and random drug testing. Despite the court's offer of services, petitioner and Jacqueline continued to abuse drugs and alcohol.

The matter was mediated on July 11, 2005. Jacqueline contested the department's allegation she caused D.'s injuries. Petitioner did not participate in mediation. He was arrested the day before for beating Jacqueline and hitting her in the face.

In September 2005, D.'s physician reported that he could not determine with medical certainty that the facial petechiae and scleral hemorrhages were accidental or intentionally inflicted. However, he determined with a high degree of certainty that the subdural hematoma was intentionally inflicted. That same month, the department filed a second amended petition, adding an allegation under section 300, subdivision (e) (severe physical abuse) that D. suffered strangulation or suffocation and a subdural hematoma consistent with nonaccidental trauma and physical abuse while in petitioner and Jacqueline's care and custody and that neither parent could provide a reasonable explanation for D.'s injuries.

On October 3, 2005, the court conducted the contested hearing. Following testimony, the court found the allegations true and adjudged the children dependents of the court pursuant to section 300, subdivisions (a), (b) and (e). The court set the dispositional hearing for November 7, 2005.

In its dispositional report, the department recommended the court deny both parents reunification services pursuant to section 361.5, subdivision (b)(5).^[4] The department also recommended the court deny Jacqueline reunification services pursuant to section 361.5, subdivision (b)(6). Both parents requested a contested hearing on the department's recommendations.

The dispositional hearing was conducted over several days and concluded on January 20, 2006. By the time of the hearing, petitioner had completed a parenting course and, after two unsuccessful attempts at drug treatment, enrolled in a 90-day residential drug treatment program in November 2005. At trial, petitioner did not challenge the applicability of section 361.5, subdivision (b)(5) but argued that failure to try reunification would be detrimental to D. because of D.'s close and positive attachment to him.

After testimony and argument, the court denied both parents reunification services as recommended and set the section 366.26 hearing for May 17, 2006. Petitioner challenged the court's orders by writ petition.

DISCUSSION

Petitioner claims that he completed all of the services ordered and that he is capable of resuming custody of his children. He also claims that his attorney did not let him speak on his own behalf and the court did not let him speak freely. Neither of petitioner's claims warrant a basis for a writ petition (i.e., allegations of juvenile court error), which limits any meaningful review we might undertake.

In this case, the juvenile court denied petitioner reunification services, finding him to be a parent described by section 361.5, subdivision (b)(5) and rejecting his rebuttal argument under section 361.5, subdivision (c) that failure to try reunification would be detrimental to D. Petitioner does not challenge the legal correctness of the court's denial of services order in his petition. Therefore, the fact that he may have completed services since the hearing does not negate or in any way undermine the court's order.

As to petitioner's claim that the court and his attorney refused to let him speak freely, we find no evidence of that on the record nor does petitioner cite this court to a specific part of the transcript where this occurred. In fact, petitioner testified and the court and minor's counsel found his testimony â€