In re Arline S.
Filed 2/7/07 In re Arline S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re ARLINE S., a Minor. | |
DAVID S., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. | B194873 (Los Angeles County Super. Ct. No. CK58452) |
ORIGINAL PROCEEDINGS in mandate. Jacqueline Lewis, Referee. Petition granted.
Thomas Hayes, under appointment by the Superior Court, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
INTRODUCTION
In this writ proceeding, petitioner David S. (father) is the father of Arline S., whom the Los Angeles Department of Children and Family Services (DCFS) detained at approximately three years of age.[1] At the 18-month review hearing, the juvenile court terminated reunification services and scheduled a hearing pursuant to Welfare and Institutions Code section 366.26[2] to implement a long term plan for Arline.
We hold that substantial evidence does not support the finding that returning Arline to father's custody at the 18-month review hearing would have created a substantial risk of detriment to her safety, protection, or physical or emotional well-being. We therefore grant the petition and issue the writ.
FACTUAL AND PROCEDURAL BACKGROUND
1. Arline Is Taken into Protective Custody
On March 13, 2005, the police found Arline sitting in the driveway of a motel at 7:00 a.m., not wearing any shoes and with no adult supervision. The police waited 20 minutes before transporting the child to the police station.
The police arrested father on an outstanding warrant and transported him to jail. The record is somewhat unclear as to the circumstances of father's arrest, but suggests that the police arrested father when he went to the station to retrieve Arline. The record also indicates that the warrant was an arrest warrant in relation to substance abuse.
2. The DCFS Files a Juvenile Dependency Petition
On March 15, 2005, the DCFS filed a juvenile dependency petition on behalf of Arline pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The DCFS alleged that father and mother had a long history of substance abuse, that father and mother failed to make an appropriate plan for Arline's care and that Arline was found outside of father's motel room without adult supervision.
The DCFS interviewed father in jail. Father stated that he had full custody of Arline and that he had not meant to leave her alone. He had arranged for a friend to watch Arline; however, the friend did not arrive. Father admitted that he made a mistake. He acknowledged that he had a 10-year substance abuse problem, primarily methamphetamine.
The juvenile court ordered the DCFS to provide father with family reunification services and to provide referrals for drug counseling with random testing, parenting and individual counseling.
3. Juvenile Court Detains Arline
On March 16, 2005, the juvenile court detained Arline. The DCFS placed her in a foster home. The court granted father monitored visitation.
4. Jurisdiction and Disposition
For the April 18, 2005 jurisdiction and dispositional hearing, the DCFS reported that both parents had a history of substance abuse. Father was drug-free in 1999. The mother had not had a relationship with Arline and was unaware that father had relapsed into substance abuse. Father admitted to recent drug use, but denied that he was still engaging in substance abuse. The social worker concluded that father did not understand the seriousness of his neglect of Arline or the harm that could result.
The DCFS reported that mother had completed a six-month drug treatment program in 2004 and that she attended NA/AA twice a week with a sponsor. The DCFS also noted that mother's home was clean, neat and appropriately furnished.
Father submitted the case on the basis of the DCFS report. The juvenile court sustained the petition as amended by the court. The juvenile court placed Arline in the home of mother. The court ordered father to participate in drug rehabilitation with random testing, parent education, and individual counseling. The court also ordered monitored visitation for father.
5. Interim Review Hearing
On May 13, 2005, the juvenile court conducted an interim review hearing. The court found that before father could reunify with Arline, he would have to demonstrate the ability to meet the physical and emotional needs of Arline, and the ability to provide stable and appropriate housing.
6. Father Is Released
By July 21, 2005, father was no longer incarcerated. He was living in a sober living home. He began visiting Arline one time per week. He obtained employment as a building contractor. Father was providing Arline with $1,000 per month, which mother confirmed. Father also stated that he was attending individual counseling and participating in random drug testing at the sober living home. Father indicated his intention to enroll in a parenting class.
Mother's boyfriend reported that on August 7, 2005, he took away from mother an unopened bottle of Vodka. Father admitted that he gave mother the bottle of Vodka for her birthday. Father knew that mother had a history of substance abuse, including alcohol.
7. The DCFS Files Subsequent Petition Pursuant to Section 342
On August 17, 2005, the DCFS filed a petition pursuant to section 342. The petition alleged that mother had resumed using drugs, that she was not taking care of Arline, and that she was physically abusing Arline. The juvenile court ordered the DCFS to detain Arline. The DCFS placed her in a foster home.
8. Father's Compliance with His Case Plan
On August 23, 2005, father and the social worker visited Arline at the foster agency. He stated that he wanted custody of Arline. Father continued to reside in the sober living home. He assured the social worker that he would provide documentation that he was participating in counseling and the parenting class. The social worker provided father with additional referrals for the random drug testing. Father indicated that the sober living home conducted random drug testing, and that it did not retain the negative tests. Father continued to visit Arline on a weekly basis.
As for his drug testing, father missed one random test on August 22, 2005. He appeared for a random test on September 13, 2005, which was negative.
9. Arline Is Placed with Relatives
On October 11, 2005, the DCFS placed Arline with a maternal aunt. Father was participating in a parenting class and had attended three sessions. Father was awaiting contact from a substance abuse program to begin counseling and additional random testing. The social worker provided father with an additional referral for a substance abuse program.
10. Visits with Arline
Father continued to visit Arline consistently on a weekly basis. On October 25, 2005, father and mother visited Arline together at the social worker's office. The social worker concluded that Arline and father have a close relationship and there were no signs of abuse or neglect.
Mother smelled of alcohol during the visit. She became angry and emotional towards her sister and left the building.
11. Juvenile Court Sustains Section 342 Petition
On December 6, 2005, the juvenile court sustained portions of the section 342 petition against mother. The court denied mother additional reunification services.
12. Review Hearing
By the time of the review hearing on January 6, 2006, father was continuing to regularly visit with Arline. The social worker reported that father had a good father/daughter relationship with Arline. Arline was happy to see her father.
Father had completed the parenting class. Father also provided the social worker with his orientation paperwork showing that he had enrolled in drug counseling, group and individual sessions. Father was enrolled in a six-month program, involving three group sessions per week, three 12-step meetings per week, and bi-weekly counseling. The program also involved random drug testing. Father's counselor reported father was doing well in his program and that he was attending the required sessions.
From August to December 2005, father had six negative drug tests and three no-shows. He did not miss a test after October 27, 2005.[3] The social worker confirmed that father was employed as a contractor.
The social worker also reported that during December 2005, father had paid for mother to stay in a hotel. According to father, he agreed to pay for one day, but mother stayed a number of days in the hotel, for which father paid.
The social worker noted that father was complying with the court orders and his case plan, and that he was regularly visiting Arline. The worker concluded, however, that father was making poor choices with respect to his relationship with mother. Father brought mother to a visit with Arline knowing that mother had been drinking. In addition, father provided mother with alcohol and hotel accommodations. The social worker concluded that father was creating a situation of co-dependency and dominance with mother. The social worker recommended termination of reunification services on the basis that an additional six months of services would not achieve reunification.
13. Juvenile Court Continues Review Hearing
The juvenile court continued the review hearing a number of times until April 2006. In January and February 2006, father continued to progress in his programs and to test clean. He continued to regularly visit Arline.
During this time period, father provided financial support to Arline's caretaker. He spent four hours with Arline at the dentist to keep her calm to avoid medication. Father assisted Arline's caretaker with enrollment in an agreed-upon school. In February 2006, Arline was hospitalized with a stomach virus. Father visited her at the hospital.
The social worker recommended that father's program be altered to include co-dependency counseling. By February 14, 2006, father's program indicated that father was participating in AA and NA meetings and that he was enrolled in a co-dependency class. The DCFS continued to recommend termination of reunification services.
14. Father Continues with Programs
On April 7, 2005, father's substance abuse program sent a letter to the social worker stating that he was in compliance with all treatment programs. The counselor noted that father would be required to attend an additional six months of an after-care program after he completed his case plan.
The counselor reported that father consistently tested clean. He attended seven of seven required individual counseling sessions. Father was required to attend 42 group sessions, but attended 49 sessions. He was also required to attend 42 twelve-step sessions, but attended 57 instead.
In the April 10, 2006 report, the DCFS recommended that reunification services be extended to the full 18 months, and that father receive unmonitored visitation. The social worker noted that father was scheduled to complete his program on April 12, 2006.
At the hearing, the juvenile court found that father had consistently and regularly visited with Arline; that father had made significant progress in resolving the problems which led to Arline's removal; and that father demonstrated the capacity and ability to complete his case plan and to provide for Arline's safety and well-being. The court concluded that there was a substantial probability that Arline would be returned to father's custody during the next period of review. The court granted father an additional six months of reunification services. The court also permitted the DCFS to allow father to have overnight visits once the DCFS approved his home.
15. The DCFS Approves Father's Home
In April 2006, the social worker visited father's home, which consisted of two bedrooms, a living room, a bathroom and a garage. The home was neat and clean. The home was spacious, and the kitchen was clean and stocked with food. Father installed four new smoke detectors.
The DCFS permitted father overnight visitation commencing in April 2006. From April to August 2006, Arline consistently visited father from Friday afternoon to Monday morning. Father took Arline to parks and on a trip to Big Bear. He also took Arline swimming.
The caretaker reported that there were no incidents and the visits went well. The caretaker reported that Arline was a happy child, who became excited to see father. At the end of the visits, Arline appeared healthy and happy. She cried for father when they said goodbye.
In early August 2006, father rented out his home. He was staying in a residence hotel. The social worker inspected the hotel facilities and found it to be neat and clean. The room had a full kitchen and Arline had her own bed. She was also allowed to use the pool facilities. The social worker observed pictures of Arline and father, as well as toys belonging to Arline. Father was researching day care facilities for Arline while he worked.
16. Eighteen-Month Review Hearing
By August 16, 2006, father was participating in the substance abuse after-care program. All of father's drug tests were negative. The counselor reported that father would complete his program in one month.
Father continued to work as construction contractor. The DCFS recommended that father receive full custody of Arline.
At the hearing, the juvenile court questioned mother about her living arrangements. Mother stated that she lived with father from April 1 to June 15, 2006. Based upon this fact, the court stated that its tentative was to terminate reunification services and set the matter for a section 366.26 hearing. The court also suspended overnight and weekend visitation and ordered that any unmonitored visitation take place in a public setting. The court continued the hearing and ordered the DCFS to prepare an adoptive home study.
17. The Supplemental Report
The DCFS submitted a supplemental report concerning the fact that father allowed mother to live in the house. There, the social worker explained that mother stayed with father from April to June 2006. Mother stated that she agreed with father not to tell anyone and that he would pursue custody of Arline.
Father maintained consistent contact with the social worker. Father visited Arline on a weekly basis in a public setting. Father admitted he made a big mistake by allowing mother to live in his home. Father stated it would not happen again. Father continued to comply with his after-care treatment program. His drug tests were negative.
The DCFS recommended that Arline be placed with father, but that she remain under DCFS and court supervision. The DCFS recommended family maintenance services for father. Because mother's counsel was ill, the juvenile court continued the hearing.
18. The Continued 18-Month Review Hearing
For the contested hearing, the social worker concluded that Arline had a substantial relationship with father. Father consistently visited Arline each week. He began taking her to church on Sunday mornings. Arline was happy to see father. She ran to hug him at the beginning of visits.
The social worker concluded that it would be detrimental to sever Arline's relationship with father. The social worker recommended that Arline be placed in the home of father.
By this point in time, father had completed his after-care program. Father's counselor reported: â€