Timothy R. v,. Super.
Filed 5/22/13 Timothy R. v,. Super. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
TIMOTHY R.,
Petitioner;
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,
Real Parties
in Interest.
G048078
(Super. Ct.
No. DP021514-001)
O P I N I O
N
Original proceedings;
petition for a writ of mandate to challenge orders of the Superior Court of
County, Dennis J. Keough, Judge. Petition
denied.
Law Office of Patricia
Smeets Rossmeisl and Patricia Smeets Rossmeisl for Petitioner.
No appearance for
Respondent.
Nicholas S. Chrisos, County
Counsel, Karen L. Christensen and
Aurelio Torre, Deputy County Counsel, for Real Party in Interest
Orange County
Social Services.
Law Office of Harold
LaFlamme and Jess Ann Hite for minor.
*
* *
At
the 18-month review hearing (Welf. & Inst. Code, § 366.22, subd. (a);
Cal. Rules of Court, rule 5.720)
name="_ftnref1" title="">[1] in
the dependency case of four-year old M.R. (son), the trial court declined to
return son to the custody of his parents.
The court instead terminated reunification
services and set a hearing under section 366.26 to consider the termination
of parental rights. Timothy R. (father) challenges
the court’s orders by petition for writ of mandate. (See Cal. Rules of Court, rule 8.452.) Because the court’s orders are supported by
petition.
FACTS
In
February 2011, a family law court placed son in the care of his paternal
grandmother “due to ongoing concerns of substance abuse and domestic violenceâ€
involving father and mother and the failure of parents to comply with substance
abuse testing obligations imposed in the family law case. The family court matter was initiated by
father against mother in an attempt to gain custody of son following an
incident in which mother allegedly took son away from father for four weeks. In July 2011, the paternal grandmother
informed Orange County Social Services
Agency (SSA) that she could no longer care for son.
Having
detained son on July 28, 2011, SSA shortly thereafter filed a juvenile
dependency petition pursuant to section 300, subdivision (b), signifying
parents’ alleged failure to protect son. Both father and mother pleaded no contest to
the allegations of an amended petition. The court declared son to be a dependent of
the court pursuant to section 360, subdivision (d).
In finding son to be a
dependent, the court found the allegations in the amended petition to be true
by a preponderance of the evidence. Father “has a history of substance abuse since
at least 1998 [including] the abuse of heroin, methadone, and alcohol with no
documented completion of a substance abuse treatment program.†Since 1988, father has been arrested for battery,
possession of controlled substances, and driving under the influence causing
bodily injury. Mother has a history of transiency, substance
abuse, and being arrested for a variety of crimes, as well as a diagnosis of mental
illness. Parents “have a history of
[confilict] which on numerous unspecified occasions . . . has escalated into
verbal and physical domestic violence in the presence of†son.
Father’s
case plan included a series of service objectives: do not break any laws; accept responsibility
for actions; cooperate with social workers; obtain and maintain a stable
residence; comply with all court orders; appropriately parent son; and
demonstrate age appropriate behavior for son.
Father also had a series of tasks to complete: counseling (aimed at anger management and
taking responsibility for actions); parental education (at least 26 weeks); and
substance abuse services (random drug testing and a 12-step program if any
positive tests occurred). Father was
entitled to visit son as part of the case plan.
Testimonial
and documentary evidence was presented
at the contested 18-month review hearing.
evidence. In each report, SSA
recommended the termination of reunification services, a suitable placement
(with someone other than parents), and the scheduling of a section 366.26
hearing.
regard to the contents of these reports. Other witnesses included father, one of
father’s therapists, and several medical doctors. As mother does not contest the court’s
findings, we focus on evidence pertaining to the question of whether the return
of son to father would create a substantial risk of detriment to son.
Since
April 2012, son has been placed with his adult sister. Son adapted well to his placement. But father expressed complaints about the
placement, including “difficulty with [son] relating to the father, [son]
calling his nephew his brother, and believing that the caretaker is preventing
[son] from talking with [father]. The
father also complains that his child is ‘changing.’â€
As
of September 12, 2012, father’s participation in his case plan was described as
“minimal.†He made more progress in the
time leading up to the completion of the 18-month review hearing.
Father
was terminated from his parenting class in April 2012 following an incident in
which father angrily threw his chair to the floor and stormed out of the room,
slamming the door behind him. Father did
not complete the 26 prescribed classes; he was somewhere between three and nine
classes short of completion. However, father
completed a different 12-hour parenting program on February 4, 2013.
Father
completed an initial eight week course of counseling in December 2011. But additional therapy was required by
SSA. Father refused to continue meeting
with a second therapist because he perceived her as being biased against father
(because the therapist was already treating mother) and “he felt traumatized by
what the therapist had said to him regarding his case.†Father was in therapy with a new therapist at
the time of the 18-month review, although he missed three meetings without
calling to cancel in January 2013. The third
therapist provided generally favorable testimony with regard to father’s
progress on January 7, 2013. The third therapist
opined that father posed no risk of harm to his son with regard to unmonitored
contact. But according to the final SSA
report, the third therapist contacted the social worker on February 13, 2013
and stated that father had made an angry phone call to the therapist. The third therapist opined on February 13
that father has not progressed in his treatment and lacks insight into his
problems.
By
his own admission, father was a drug addict “for a long time†whose drug of
choice was heroin, which he abused for 20 years. Father used methadone from 2006 to 2008 as a
way to stop using heroin. Contradicting
the court’s findings at the jurisdictional hearing, father claims he never
abused methadone.
Father
missed some drug tests during the dependency. Father left an expletive-laced tirade as a
phone message on the social worker’s voice mail on January 23, 2013 about a
missed drug test. Father’s participation
in Alcoholics Anonymous and Narcotics Anonymous was inconsistent during the
dependency. Father did not “have a
sponsor because [he does not] believe in sponsorship.†Father obtained a sponsor at the end of 2012
based on SSA input.
Father
clashed with the social worker regarding his
back pain problems. Father, in possession
of a “medical marijuana card,†used marijuana to manage his pain at the beginning
of the dependency case. Father tested
positive for marijuana throughout the beginning of the dependency case. The social worker indicated to father that it
would be difficult to advance the family reunification process so long as he
tested positive for marijuana. At one
point, father acknowledged to the social worker “that his use of marijuana
could have compromised his memory and reasoning, and could possibly impact his parenting.†Father committed to stop using marijuana in
the summer of 2012 “in order to progress to unmonitored visitation.†Father relapsed and used marijuana in December
2012.
Due
to his history of narcotic addiction, SSA wanted father to treat his back pain
with a non-narcotic pain reliever. Having
been referred to a pain management specialist, father disagreed with the
specialist’s advice to take a non-narcotic pain medication and therefore
stopped using the drug — without the specialist’s approval. The father complained about side effects from
this medication, including depression
and suicidal ideation.
Father
tested positive for methadone and oxycodone toward the end of the dependency
case. Father used oxycodone from March
2012 through the summer of 2012. Father
began taking methadone for pain in August 2012 under a prescription from a
doctor at a Santa Ana clinic. Father did
not tell the clinic doctor he was using methadone for pain management; father
told the clinic doctor he needed methadone due to an addiction to oxycodone and
Vicodin. According to his own testimony,
father lied “[b]ecause that’s the only way I can go there and receive methadone
treatement, to the methadone clinic, because they are not a pain clinic.†The social worker was not informed of father’s
actions in changing medical providers while it was occurring. The social worker was “concerned that
[father] is arranging to self medicate on drugs of his choice. He left the pain management clinic that would
not prescribe as he wished in order to attend a methadone clinic where he
provided deceptive information. This
indicates a current and untreated issue with drug addiction.â€
Father
was referred by his general practitioner to three different pain management
specialists. Father never informed his
general practitioner about his history of heroin abuse. The final pain management specialist, Dr.
Philip Chiou, actually prescribed methadone for pain management in December 2012.
Dr. Chiou testified that “it would be
ideal if we can get [father] on non-narcotics eventually [based on his] history
of heroin of abuse . . . .†Dr. Chiou
testified that some pain management specialists would not prescribe narcotics
to father based on his high score on a screening evaluation. But Dr. Chiou balanced the risks of narcotic
dependency and the benefit of effective pain management and concluded father
could receive methadone under appropriate monitoring. Had father not already been taking methadone,
Dr. Chiou would have tried a non-narcotic pain medication or prescribed
methadone at a lower dose.
Due
to father’s extensive drug history, the social worker would never recommend
returning son to father so long as father utilized narcotics. Thus, it appears that in responding to the
social worker’s concerns about his use of marijuana, father made things worse
by exchanging marijuana for narcotics. The
social worker indicated she was concerned with the potential effect of father’s
drug usage on his ability to care for son. SSA guidelines suggest a parent’s visitation
should be monitored if a parent is testing positive for narcotics, regardless
of whether the parent has a prescription.
Father
was incarcerated in October 2012 for a probation violation. Father drove with a suspended license. Father did not inform the social worker of
his arrest and incarceration.
Father
“has continually throughout the case made statements . . . that none of this
was his fault, that he doesn’t know why his child is here, that he was the good
parent, that he did what he needed to do, and that he believes that the
information provided in the reports . . . were all lies . . . .â€
Father
regularly visited son and interacted with son during the visits. Father rarely missed his visitation
opportunities with son. “Overall, the
father has not struggled in this area . . . .
The father shows that he does love his son and wants to spend quality
time with him.†But during a visit at a
park, father became “very aggressive and loud†while responding to an
individual who asked father to move out of an area that had been reserved for a
party. After this incident, father’s
visitation was moved to a facility to allow formal supervision by SSA (rather
than caretaker supervision).
Father
has steady disability income from the Social Security Administration. Father maintains a stable residence and has
appropriate furnishings/supplies for son.
Father talked with his therapist about ways to keep mother away from son
(e.g., do not inform mother of his address).
The
court did not return son to father, but instead discontinued reunification
services and set a section 366.26 hearing to consider the termination of
parental rights. The court found
reasonable services had been provided to both parents, a finding not challenged
in this petition.
The
court rejected a bright line rule against returning son to father based on
father’s continuing usage of either marijuana or methadone. But the court did find father’s use of these
substances to be troubling based on father’s prioritization of his drug use
preferences, his adversarial relationship with at least one physician, his failure to disclose his complete medical
history to other physicians, and “the patently false statements that [father]
made to utilize the services of the . . . Santa Ana Clinic.†The court also cited father’s relapse (with
marijuana) and his failure to engage with a mechanism to avoid relapses (such
as a 12-step program).
Aside
from substance abuse issues, the court mentioned father’s inappropriate usage
of profanity and other intimidating behavior in his interaction with various
individuals, including his therapist. “And the court understands that we live in a
rough and tumble world, and the court is not offended by the use of profanity,â€
but the court was troubled by father’s lack of self-control in situations in
which he knew his parental rights were at stake. The option of simply fleeing father’s anger
was not available to a four-year-old child.
The
court “did not believe father’s testimony that he would be amenable to [family
maintenance] services, that what is presented is . . . an individual who . . .
believes that it’s none of anybody’s business and . . . there would be a
substantial concern regarding father’s ability to accept services which the
court would find would be necessary to reasonably assure the child’s safety.†In sum, the court agreed with SSA that
father’s substance abuse and self-control issues (which provided the factual basis
for the sustained dependency petition) were not sufficiently resolved to allow
the return of son to father.
DISCUSSION
At
an 18-month review hearing, “[a]fter considering the admissible and relevant
evidence, the court shall order the return of the child to the physical custody
of his or her parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent . . . would create
a substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child. The
social worker shall have the burden of establishing that detriment.†(§ 366.22, subd. (a).)
SSA
“has the burden of establishing detriment.
[Citations.] The standard for
showing detriment is ‘a fairly high one.
It cannot mean merely that the parent in question is less than ideal,
did not benefit from the reunification services as much as we might have hoped,
or seems less capable than an available foster parent or other family
member.’ [Citation.] Rather, the risk of detriment must be
to parental custody represents some danger to the child’s physical or emotional
well-being.†(In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (
participate regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be detrimental.†(§ 366.22, subd. (a).)
Father’s
sole argument on appeal is the court erred in finding the return of son to
father’s care would create a substantial risk of detriment to son. A juvenile court’s factual findings are
reviewed under the deferential substantial evidence standard. (Yvonne,
“In doing so, we consider the evidence
favorably to the prevailing party and resolve all conflicts in support of the
trial court’s order.†(
Substantial
evidence supports the court’s finding.
Father is a recovering heroin addict with anger management problems and
a criminal history. Father failed to
comply with SSA’s request that he limit pain medication to non-narcotic drugs. Instead, he lied to the methadone clinic to
obtain his pain medication of choice and discarded pain management specialists
until he found one willing to prescribe his preferred pain medication
(methadone). Father failed to
demonstrate through therapy or his actions during the dependency case that he
would keep his anger under control or that he would cooperate with SSA to
ensure the safety of son were son to be returned to father. The relevant question for the court was not
whether father complied with some aspects of his case plan (he did) or whether
father was a better candidate than mother for reunification with son (he
was). The question was whether the
return of son to father “would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.†(§ 366.22, subd. (a).) We will not second-guess the court’s factual
findings, which were premised not only on the evidence available in the record
but on credibility determinations made by the court.
Father
likens this case to instances where courts inappropriately sustained dependency
petitions based purely on parents’ marijuana use without any evidence of harm
to the children. (In re Drake M. (2012) 211 Cal.App.4th 754, 757-758 [father’s
use of medical marijuana for arthritis]; In
re David M. (2005) 134 Cal.App.4th 822, 825-827 [parents’ use of
marijuana].) Of course, it is not disputed
that the dependency petition was properly sustained in this case based on the
combined inability of mother and father to adequately protect son from harm in
2011. Moreover, although father’s
marijuana use played a role in the social worker’s refusal to allow unmonitored
visitation between father and son, father’s use of marijuana is not the basis
for the court’s ruling at the 18-month review hearing.
Father
also cites to cases in which there was insufficient evidence to support trial
courts’ decisions not to return children to parents. (See, e.g., Yvonne, supra, 165
Cal.App.4th at pp. 1401-1402 [mother completed case plan and maintained
sobriety for one year; “child’s dislike of a parent’s living arrangement,
without more, does not constitute a substantial risk of detrimentâ€];
Cal.App.4th 1322, 1346 [“record does not support a finding . . . that
Mother’s marijuana use . . . means the children’s return to Mother would create
a substantial risk of detrimentâ€].) But the potential for substantial risk of
detriment to son is apparent in this case based on father’s troubled life
history and his failure to demonstrate he has put his troubles behind him. The court was not obligated to return son to
father in these circumstances.
DISPOSITION
The petition for
extraordinary relief is denied.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
BEDSWORTH, J.
statutory references are to the Welfare and Institutions Code.
hearing actually started as a 12-month review hearing, but, due to extended
testimony and several continuances, the court consolidated the 12-month review
hearing with the 18-month review hearing.
Father does not take issue with this procedure.
