In re Jasmine B.

Filed 5/1/07 In re Jasmine B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

Oscar B. (father) petitions (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code,  366.26, subd. (l))^[1]for review of an order of January 31, 2007, terminating reunification services and setting a plan selection hearing under section 366.26 (a .26 hearing) for his infant daughter, Jasmine B. He challenges findings of detriment from return, and failure to make substantive progress in services. We deny the petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

Jasmine was born in February 2006 (all unspecified dates are in 2006). Mother and child left the hospital to reside, first, in the home of an ex-boyfriend of the mothers, and then in fathers home where, on March 8, Jasmine was taken into protective custody following a referral that the mother had tested positive for methamphetamines in prenatal visits, including one the day before the birth. The mother had a criminal and drug use history, ongoing arrests, incarceration and probation problems, and a one-year-old daughter already in dependency who was awaiting a .26 hearing. The mother was not offered reunification services here and is not a party to this writ proceeding.

Father was at first unsure whether the child was his and was named as one of two alleged fathers until testing confirmed his paternity. He said upon Jasmines detention, however, that he wanted to be involved in her life and was willing to participate in whatever services the agency (San Mateo County Human Services Agency) required. He conceded past use of methamphetamines, having last used the drug two weeks earlier (around Jasmines birth), and never having participated in drug treatment.

A dependency petition was filed by the agency on March 7. Father submitted on the report on May 30, waiving his trial rights, and it was sustained as to him. The basis was failure to protect ( 300, subd. (b)) due to his history of methamphetamine use, his acknowledged use of it as recently as January, and not having been involved in treatment to address his substance abuse problem. The report noted his spotty record of visits and keeping appointments, failure to enter drug treatment or give urine samples, admissions of methamphetamine use and regular use of marijuana, and persistent denial of having a drug problem. However, citing many positive qualities, like appropriate, caring, and attentive visits that he did make, the report recommended providing him with reunification services. The initial case plan required, in part, that he stay free from illegal drugs, show that he could live drug-free, comply with all required drug tests, complete a substance abuse assessment, and, if applicable, complete treatment services. On June 21, the petition was sustained as amended to designate father a presumed father.

At the disposition on July 5, the court found detriment from return, ordered Jasmine placed out of home and approved an updated case plan, specifically ordering father to complete any recommended treatment, to refrain from alcohol and illegal drug use, and to have random drug screens to monitor his compliance. A recent addendum report showed that father still admitted regular marijuana use plus methamphetamine use as recently as April. He had previously failed to have an assessment or give requested urine samples but had very recently met with an assessment specialist, Nikki Adams, and agreed to give a sample. A report of June 27 from Adams showed that father claimed only occasional use and to have last used methamphetamine six months ago, but he was willing to start outpatient services and give random samples, with residential treatment to follow if he failed and had positive tests. Adams recommended outpatient services at the Latino Commission.

Interim and six-month review reports of early October and December showed that father was repeatedly reminded that his time to reunify with Jasmine was limited. He completed a parenting class and, for several weeks, when it seemed that he might test and participate in drug treatment, had his supervised visits with Jasmine increased from one to three a week. They were cut back again, however, as he continued to deny any drug problem or need to test and made no progress in that regard. In a late-September meeting with Adams and a social worker, father claimed to have telephoned the Latino Commission for an intake and heard nothing back. Adams then set up the screening for him, which he attended, but then he failed to do drug testing required to start their drug treatment program. He later told the social worker that he would start drug testing, at Sitike Counseling Center, in order to start the Latino Commission program, but thereafter missed multiple tests.

Pending a continuance of the six-month review to January 31, 2007, father likewise missed more drug tests, despite prodding from the social worker, who had been making transportation assistance available. Asked if he was afraid of producing dirty tests, father told the social worker he was not using and simply had not tested. His successes, on the other hand, were that those visits and dyad therapy sessions he attended with Jasmine were good. He responded well to her, and she was happy, engaged, and affectionate with him. Jasmine was generally healthy and happy in foster care placement.

Testimony from the case worker and report/addendum author, Anu Joshi, at the hearing on January 31, 2007, was that, while father had complied with his case plan in completing the parenting class, visiting and more recently attending dyad therapy sessions, he had not made substantial progress overall because he failed to address his substance abusethe primary reason why Jasmine was not placed with himuntil just two weeks prior to the hearing. He had completed his assessment months earlier, but failed to follow through, and only in the last two weeks gave drug tests and enrolled in drug treatment. His efforts included three tests at the Sitike Counseling Center, one of which, just two weeks past, had shown amphetamine and marijuana use, and six sessions of a 90-day, thrice-weekly outpatient program at the Latino Commission. He had also tested twice earlier in the past two months, one showing alcohol of 0.129 gm/dl. Jasmine was nearly a year old, and Joshi saw no possibility of father reunifying with her in the next month and a half.

Father testified, attributing his late start, in part, to having had about five social workers and maybe one, two sessions out of each, which was not enough for them to make an assessment of me as to what kind of person I am. He felt that the drug program so far had helped him learn how to avoid the urges to use drugs and that he would continue in and complete it because, Basically Im doing it for me, myself and my daughter Jasmine. His daughter, he felt, was the best. He wanted to reunify with her and replied, Correct, when asked on cross-examination whether it was only in the last two weeks that he realized he had a problem.

The agency recommended terminating services and setting a .26 hearing, and the court did so. It commended father for wanting to be a part of Jasmines life, taking the parenting class, and being good about the visitation. But, the court continued, since July of last year, Mr. B[.], you kn[e]w what as required of you as far as the substance abuse treatment and to wait until just a couple of weeks before the hearing and then have a positive test on January 16 of 2007, I have to conclude that you havent made substantial progress.

III. DISCUSSION

A six-month review for a child who has been removed from parental custody is governed by section 366.21, subdivision (e). Due to a statutory presumption that a child will be returned (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249), return must be ordered unless the court finds, by a preponderance of the evidence, that the return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child ( 366.21, subd. (e)), and the agency bears the burden of proof (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789). If, like Jasmine, a child was under three years old when initially removed, the court may schedule a .26 hearing if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan . . . . ( 366.21, subd. (e).)

The court in this case found failure to participate regularly and make substantive progress in court-ordered treatment and that return would cause a substantial risk of detriment. We review such findings for abuse of discretion or substantial evidence. Discretion is abused only when the court exceeded the bounds of reason, and when multiple inferences can reasonably be drawn from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) It is the trial courts role to assess the credibility of witnesses, weigh the evidence, and resolve conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.] (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The same standards govern review of findings made by clear and convincing evidence. (Crail v. Blakely (1973) 8 Cal.3d 744, 750; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.)

A. Substantive Progress in Court-Ordered Services

Fathers assault on the no-substantive-progress finding is that it lacks substantial evidence because he had maintained fairly regular visitation, completed a parenting class, had successful dyad therapy, underwent a drug assessment, and finally enrolled in a drug treatment program. Granting him additional time . . . to complete the drug program, he urges, was reasonable and in Jasmines best interest. What might have been a reasonable contrary ruling, however, is not what our review asks, and Jasmines best interests were balanced in a dependency scheme which, at this point in the offered services and her young age, made lack of substantive progress key.

As correctly stressed below and in the agencys opposition here, the principle problem father had to address in his services plan was his admitted drug use and lack of treatment, both of which were also jurisdictional facts. The agency aptly observes that father did not address this problembeyond assurances, token efforts, and a long delayed drug assessment that necessarily preceded any treatmentuntil two weeks before the six month review hearing on January 31, 2007, a review that came nearly seven months after the dispositional hearing of July 5.

We go a step further and observe that the time had run even earlier. The relevant statute measures six months from the earlier of the disposition or 60 days after the date on which the child was initially removed from the parents physical custody ( 361.5, subd. (a)(3)), and Jasmines initial removal took place when she was taken into custody on March 8 (In re N.M. (2003) 108 Cal.App.4th 845, 854-855; In re Christina A. (2001) 91 Cal.App.4th 1153, 1164-1165 & fn. 2). The measuring date was therefore May 7, not the disposition date of July 5, and this six month review therefore occurred at nearly nine months. Fathers last minute pursuit of drug treatment at that point, following more than eight months of false promises and denials, was reasonably construed as failure to regularly participate and make substantive progress in court-ordered services. (Cf. Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 397-398, disapproved on other grounds in Jessica A. v. Superior Court (2004) 124 Cal.App.4th 636, 643.)^[2]

B. Detriment from Return

Fathers evidentiary attack on the detriment-from-return finding founders on our holding, above, that the finding of failed regular participation and substantive progress is supported. That finding was prima facie evidence . . . that return would be detrimental. (Rule 5.710(e)(3).) Also, fathers claim rests on an odd postulate that a parent who is an admitted abuser of methamphetamines and marijuana, just barely in treatment, can pose no substantial risk of detriment to an infant unless there is evidence that he is addicted to drugs or uses drugs on a regular basis, and where he has no arrests for drugs, no domestic violence charges and no prior involvement with Child Protective Services.

Father cites no authority for his postulate, and the logic of it escapes us. Besides, the record supports implicit findings that he had, but long denied, a drug problem. His own testimony affirms this: [The program] has helped me acknowledge. I do have a problem with drugs. They will always be out there. Its teaching me how to avoid the urges of wanting to be near them, you know, the drugs. As for using drugs on a regular basis, he forgets that he admitted regular use of marijuana early in this case. He had done well with his daughter in structured, supervised visits, but his long delay in entering treatment and testing regularly left the court without any history of unsupervised visits. The risk-of-detriment finding is supported.

IV. DISPOSITION

The petition is denied on the merits. (Cal. Const., art. VI,  14; Kowis v. Howard (1992) 3 Cal.4th 888 [barring subsequent challenges by appeal];  366.26, subd. (l)(1).) Given the need to proceed promptly with the hearing set for May 23, 2007, this decision is final immediately (rule 8.264(b)(3)).

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^[1] Unspecified statutory and rule references are to the Welfare and Institutions Code and the California Rules of Court.

^[2] Tucked into the conclusion of his petition, without a proper heading, is a distinct claim that the court erred in not finding a substantial probability of return in the next six months. We reject this as improperly presented. It is also without merit, largely for reasons already expressed. It also assumes in error that extending time to the 12-month mark would have yielded six additional months. In fact there were only three; father had just embarked on an outpatient treatment of 90-days length, with little objective prospect of success; and his credibility on drug matters was poor.