Robert B. v. Superior Court

Filed 3/1/07 Robert B. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Frank Doughtery, Judge.

C. Logan McKenzie, for Petitioner.

No appearance for Respondent.

James N. Fincher, County Counsel and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Vartabedian, A.P.J., Harris, J., and Kane, J.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his two sons. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In May 2005, petitioners sons, three-year-old Robert and two-year-old Anthony, were removed from the custody of their mother D. by the Merced County Human Services Agency (agency) after D. was arrested for allowing her friends to use her home to smoke crack while the children were present. The agency social worker who responded to the family home found human feces smeared on the carpet, furniture, the childrens bedding, and the kitchen floor. There was raw sewage on the bathroom floor from the overflowing toilet. The kitchen was dirty and the refrigerator was empty. Robert and Anthony were found eating raw hotdogs and sitting on chairs smeared with human feces. At the time, petitioner was in prison for domestic violence and scheduled to be released in December 2005.

The juvenile court ordered the children detained pursuant to a dependency petition ( 300, subd. (b)) and, in July, placed them with D. under a plan of family maintenance. However, the children were removed again in September after D. tested positive for methamphetamine. D. disclosed that the stress of her sons behavior triggered her relapse.

The juvenile court detained the children pursuant to a subsequent petition ( 342). In its dispositional report on the subsequent petition, the agency reported that Robert was presenting behavior consistent with a developmental delay and that D. had not taken him to the regional center for assessment. Ultimately, Robert would be diagnosed with autism and Attention Deficit Hyperactivity Disorder and Anthony would be diagnosed with speech delay. The agency recommended the court remove the children and offer D. reunification services.

At the dispositional hearing in November 2005, the court ordered D. to participate in a plan of reunification, which required her to complete a mental health assessment, a substance abuse evaluation and parenting instruction, participate in domestic violence counseling, and submit to random drug testing. The court set an interim review hearing for January 2006 and a 12-month review hearing for May 2006.

In December 2005, petitioner was released from custody. At the January 2006 interim review hearing, the court ordered him to participate in a reunification plan, which required him to complete a 52-week batterers treatment program, mental health and drug and alcohol assessments, and parenting instruction and submit to random drug testing.

In its status review for the May hearing, the agency reported that petitioner and D. were making progress in their case plans and that they related appropriately with the children at the supervised visitations. At the review hearing, the court continued services and set an interim review for August 7 and an 18-month review hearing for October 30.

In its August 2006 status review, the agency reported that petitioner and D. were making progress in their court-ordered plans. They were both testing negative for drugs, D. completed her parenting course and petitioner completed the domestic violence program, mental health counseling, and was participating in outpatient substance abuse services. However, D. was not participating in mental health or domestic violence counseling and had a warrant for her arrest because she failed to comply with court-ordered drug treatment. In addition, she was reportedly anxious around the children when petitioner was not present during visitation. In addition, D. was pregnant with their third child. On the agencys recommendation, the court ordered services to continue.

In its October 2006 status review, the agency recommended the court terminate reunification as to both parents. The agency reported that petitioner had successfully completed his case plan requirements and was working full time. However, D. had still not successfully completed mental health and domestic violence counseling. She stated she was overwhelmed by the childrens special needs. With petitioner working full time, D. would be the childrens primary caregiver, which the agency believed would place them at risk. In addition, the agency reported that the children were doing well in their foster placement and that the foster parents were willing to adopt them should reunification fail.

On October 30, the court convened the 18-month review hearing but continued it to allow petitioner to provide a plan for the childrens care while with D. Petitioner informed the agency a family friend would assist D. with the childrens care while he was working. He provided the agency a schedule accounting for each of the childrens daily activities and indicating that the children would either be in his care or D. and the family friends care during each activity.

The agency provided petitioners plan to the court in an addendum report in November. However, the agency still recommended the court terminate reunification services in light of the childrens special needs and need for a highly structured environment, petitioner and D.s failure to demonstrate they could provide such an environment, Roberts significant progress in the care of his foster parents, D.s failure to sufficiently address her coping and stress reduction skills through her court-ordered treatment plan, and the risk she could relapse.

On November 27, 2006, the court conducted the 18-month review hearing. Petitioner and D. appeared and waived their trial rights. County counsel argued petitioners plan to care for the children was insufficient given the childrens special needs and D.s inability to parent. Counsel for petitioner conceded that D. was not capable of taking care of the children but argued petitioner had provided a sufficient plan to ensure their safety and protection. D.s attorney argued that Roberts eligibility for regional services would avail the family of the services they need to care for the children. Consequently, he argued the court should terminate dependency. Minors counsel agreed with D.s attorney, adding that the law does not require parents to be perfect.

Following argument, the court adopted the agencys proposed findings and orders and set a section 366.26 hearing for March 5, 2007. This petition ensued.

DISCUSSION

Petitioner claims his proposed plan for the childrens care eliminated any potential detriment posed by their return to his and D.s custody. Therefore, he argues, the juvenile court erred in setting a section 366.26 hearing rather than dismissing dependency proceedings and returning the children to parental custody. We disagree.

At the 18-month review hearing, the juvenile court must return the child to parental custody unless it finds, by a preponderance of the evidence, that the child's return would create a substantial risk of detriment to the safety, protection or well-being of the child. ( 366.22, subd. (a).) In determining whether it would be detrimental to return a child at the 18-month review hearing, the court must consider the extent to which the parent participated and made progress in the court-ordered treatment plan. (Ibid.) If the court does not return the child, the court shall order that a hearing be held pursuant to section 366.26 to determine the most appropriate plan for the child. (Ibid.)
When the sufficiency of the evidence to support a juvenile court finding is challenged on appeal, we must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. [Citations.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In so doing, we resolve all conflicts in favor of the prevailing party and do not reweigh the evidence. (Ibid.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
In determining whether it is safe to return a child to the custody of an intact parental couple, the juvenile court must consider the potential detriment posed by each parent individually as well as collectively. In this case, no one disputes that Robert and Anthony would be at risk of harm if returned to D.s custody. She was admittedly overwhelmed by their special needs, which she attributed to her relapse. Nevertheless, petitioner argues his plan eliminates any risk posed by D. by ensuring the children would never be alone in her care. The problem is that petitioners plan may reasonably be viewed by the court as lacking sufficient safeguards. The risk of harm if it fails is great. D. exposed the children to vile living conditions as well as all the dangers attendant to drug use. Under the circumstances, the court apparently determined that the risk that the children could again be exposed to D.s drug use and to the squalid conditions in which they were found exceeded the strength of petitioners promise that the children would never be alone in D.s care. Based on the foregoing and viewing the evidence in favor of respondent, which we must, we conclude substantial evidence supports the court's finding of detriment. Accordingly, we affirm the courts orders terminating reunification services and setting the section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.