In re K.F and W.F.

Filed 9/18/07 In re K.F and W.F. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

I.

Introduction

Petitioner Jerry F. seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing (Welf. & Inst. Code,  366.22)terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter K. and his son W.^[1] Petitioner claims the juvenile court should have returned the children to his custody because he had substantially complied with the case plan. We will deny the petition.

II.

Facts and Procedural History

On November 12, 2005, seven-year-old K. and three-year-old W.s mother died from a drug overdose. A police officer responding to the home at the time of the mothers death reported that K., who has Downs syndrome, was soiled with feces and urine and had a rash on her buttocks. There were dirty clothes and garbage and old food all about the house, and beer cans and drug paraphernalia in the living room. The toilet had been broken for several days and was filled with human feces. The children were dirty and hungry.^[2]

On November 30, 2005, the police placed K. and W. into protective custody because petitioner had called the social worker and threatened to kill himself. Petitioner told the social worker that he was feeling angry, depressed and overwhelmed and that he was worried that he might harm the children while in this state of mind. A drug test completed on November 29, 2005, indicated petitioner tested positive for methamphetamine.

The social worker reported that petitioner had a history of drug use, including crack cocaine, methamphetamine, and marijuana. He also had a history of mental health problems and anger management issues. Petitioner underwent a psychological evaluation conducted by Dr. C. Mark Patterson, Ph.D., which concluded that the children would be at substantial risk if returned to petitioners care and that his amenability to treatment appears to be moderately low. Dr. Patterson identified numerous problems with [petitioners] parenting capacity including a possible lack of empathy for the effect of his behavior on his children, a history of domestic violence, ongoing risk for substance abuse, and possible risk of using his children in production of pornographic material to earn money. It was recommended that petitioner have only supervised visitation with the children until he was able to demonstrate a period of stability, uninterrupted sobriety, and emotional self-control.

After a contested jurisdictional and dispositional hearing held on February 14, 2006, the court declared the children dependents under section 300, subdivision (b),^[3]and placed them with a maternal aunt and uncle. Petitioner was ordered to engage in counseling, drug assessment and treatment, and drug testing.

Unfortunately, the maternal relatives were not able to meet the childrens special needs and on April 24, 2006, the children were removed from relative care. At the six-month review hearing, the children were living in separate foster home placements where they were making developmental strides.

In January 2007, the social worker reported that petitioner had maintained sobriety since his release from jail in September 2006 and he had begun participating in his case plan in October 2006. However, he had continued to demonstrate an inability to control his anger. There had been reported incidents of domestic violence in which petitioner had put his girlfriend in a chokehold and repeatedly punched her in the stomach. Prior to the 12-month review hearing, the court ordered that petitioner participate in another mental health evaluation and that supervised visits with the children be limited to once per month.

As of the 12-month review hearing held on February 27, 2007, petitioner had attended nine sessions of anger management classes. Petitioner had tested more regularly since his release from jail at the end of September 2006. He had tested negative in 21 out of 25 tests, but had three administrative dirties due to not showing up for tests. However, he also had one positive screen for methamphetamine on February 9, 2007.

A follow-up mental health evaluation was conducted by Dr. Robin Press, Ph.D. Dr. Press found that petitioner had experienced improvement in his overall mood and level of functioning. He had achieved a period of being drug free and made significant improvements over the last year. However, there were ongoing concerns about his ability to parent due to his limited coping skills, which predispose him to greater vulnerability to stress than most people.

The social worker recommended that reunification services be terminated as petitioner had failed to demonstrate that substantial progress had been made in reaching his case plan goals. Although petitioner was participating in counseling and anger management, he continued to demonstrate an inability to control his anger. Petitioners personal life continued to be unstable, including reported instances of domestic violence with his girlfriend.

After a contested 12-month review hearing in March 2007, the court chose not to follow the social workers recommendation and instead granted petitioner additional reunification services after finding that petitioner had maintained regular supervised visitation with the children and had made substantial progress on achieving the objectives of his treatment plan.

The social workers report for the 18-month review hearing recommended termination of reunification services and that the matter be set for a section 366.26 hearing. The report indicates that petitioner was minimally compliant with his case plan. Although petitioner had participated in individual counseling, an anger management program, and outpatient drug treatment, petitioner still continued to demonstrate instability in his personal daily life. The social worker reported that after securing a job as a parttime food clerk at Safeway, petitioner was terminated for stealing. Attached to the social workers report is a signed statement from petitioner admitting to stealing over $600 out of the cash register as well as taking customer donations for Easter Seals.

Further incidents of domestic violence were reported. Petitioner and his girlfriend were evicted from their apartment after living there for only two weeks due to complaints from tenants about their violent arguments and petitioner causing problems, yelling, and being disrespectful towards the other tenants. Petitioners girlfriend secured an emergency protective order against petitioner on April 11, 2007, after the police were called because petitioner had assaulted her. Petitioners anger management counselor reported that petitioner had not taken any responsibility and demonstrated a  poor me attitude  about the continued domestic violence. Moreover, petitioner was recently asked to leave his mother-in-laws residence because she was increasingly scared and intimidated by his volatile behavior. At the time of the 18-month hearing, petitioner was residing at a drug and alcohol rehabilitation house that did not allow children.

Nor had petitioner adequately addressed his substance abuse issues. Petitioners substance abuse counselor reported that petitioner was still in step 2 of the 12-step program and that he is taking steps backward and not progressing forward. The substance abuse counselor stated that petitioner always has an excuse for not doing the work required to progress out of step 2.

Notably, despite petitioners regular attendance at scheduled supervised visits with his children, he had not yet progressed to the point of having unsupervised visits with them; and his youngest child, Wayne, had made statements that he was afraid to be alone with his father.

A contested 18-month review hearing commenced on July 24, 2007. Both petitioners girlfriend, who had recently obtained a restraining order against petitioner, and the childrens maternal grandmother, with whom petitioner recently lived, described petitioner as dangerous and explosive. They expressed their opinion that the children would not be safe in his custody. The social worker expressed her concern that petitioner had not demonstrated a capacity to properly care for his children because he has been unable to demonstrate that he has applied the learnings [sic] from the programs and the treatment he has received to his personal life.

At the conclusion of the hearing, the court indicated that [h]aving heard the evidence, it appears to me that the return of the children to the fathers custody will create a substantial risk and a detriment to their safety, as well as physical and/or emotional well-being. And I dont make that finding lightly. The court terminated reunification services and set the matter for a section 366.26 hearing for October 2, 2007, to select and implement permanent plans for K. and W. This petition followed.

III.

Discussion

As we have noted, the hearing held on July 24, 2007, constituted the 18-month review hearing. Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children. [Citations.] (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596, fn. omitted.) At such a hearing, the court shall order the return of the child to the physical custody of his or her parent . . . unless [it] finds, by a preponderance of the evidence, that [such] return . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.22, subd. (a).) The social services agency has the burden to establish such risk of detriment, but may make a prima facie showing through evidence that the parent has fail[ed] . . . to participate regularly and make substantive progress in court-ordered treatment programs. (Ibid.) If a court decides not to return a child to his or her parent, it must specify the factual basis for its conclusion that return would be detrimental. (Ibid.)

As noted, the court below found that the childrens return to parental custody [would] create a substantial risk and a detriment to their safety, as well as [their] physical and/or emotional well-being. Petitioner contends this finding was made in error because [t]here was a total lack of any evidence showing a detriment if reunification occurred. We review the challenged finding to determine whether it is supported by substantial evidence. (See Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).) In doing so we do not reweigh the evidence. (Ibid.) In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)

In arguing that the finding of detriment lacks evidentiary support, petitioner seeks to minimize the significance of his recent relapses while emphasizing his previous successes. As we have stated, however, we do not reweigh the evidence, but consider it in the light most favorable to the ruling to determine whether it provides substantial support for the challenged finding. (See Constance K., supra, 61 Cal.App.4th at p. 705.)

In this case, the record contains ample evidence that as of the date of the 18-month hearing, which is the statutory limit for reunification, the children were still at substantial risk of detriment due to petitioners failure to benefit from the services that had been provided. Petitioner demonstrated a continuing inability to provide a safe and stable living situation for his children. He had not maintained stable housing or employment, which was due in large part to his poor impulse control. He was evicted from an apartment he shared with his girlfriend and from his mother-in-laws home due to domestic violence and intimidation. His lack of stable employment was due to his dishonesty in stealing large sums of cash from his employer. Petitioners testimony indicated he was currently residing in an in-patient drug treatment facility and that he had no plan for assuming custody of the children or accommodating their special needs. We conclude the foregoing evidence provides substantial support for the finding of detriment to the children, in that it shows petitioner has fail[ed] . . . to participate regularly and make substantive progress in court-ordered treatment programs. ( 366.22, subd. (a).)

Petitioner next complains that the juvenile court failed to specify the factual basis for its conclusion that there was a substantial risk of detriment to the childrens well being if they were returned to his custody. (See  366.22, subd. (a).) However, cases involving a courts obligation to make findings regarding a minors change of custody or commitment have held the failure to do so will be deemed harmless where it is not reasonably probable such finding, if made, would have been in favor of continued parental custody. [Citations.] (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) The courts failure to make the statutory factual findings was harmless, since it is not reasonably probable the findings would have been in favor of return of the children to petitioner.

IV.

Disposition

The request for stay is denied, and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowis v. Howard (1992) 3 Cal.4th 888, 894 [subsequent appeal challenge barred].) The decision is final in this court immediately. (Rule 8.264(b)(3).)

_________________________

Ruvolo, P. J.

We concur:

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Reardon, J.

_________________________

Rivera, J.

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^[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.

^[2] Petitioner eventually faced criminal charges with respect to the childrens living conditions. A restraining order preventing contact between the father and the children had been issued by the criminal court after petitioner pled guilty to one count of child endangerment. Petitioner was required to serve 60 days in the county jail and complete one year of child abuse counseling. The order was later modified to allow supervised contact with the children.

^[3] Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parents failure to adequately supervise or protect the child or provide adequate medical treatment.