Victor M. v. Super

Filed 2/16/06 Victor M. v. Super. Ct. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Victor M., Sr., petitions for extraordinary relief from a juvenile court order terminating reunification services and scheduling a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26 for his minor children, Lawrence M. and Victor M., Jr.^[1] Petitioner contends the evidence does not support the conclusion that returning the children to his custody would create a substantial risk of detriment to their safety or well-being. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is the alleged father of Lawrence and Victor, Jr. (the minors). The Alameda County Social Services Agency (the Agency) received a call on February 17, 2005, informing the Agency that the minors' mother had left them at home early in the morning and had failed to return by 1:30 p.m. The mother could not be reached and was reported to have a history of drug use. At the time, Victor, Jr., was nearly four years old, and Lawrence was just over six months old. The minors were living with their maternal grandfather, who told the Agency he could not care for the minors. The Agency delivered the minors into protective custody.

On February 24, 2005, the Agency filed a section 300 petition on behalf of the minors, alleging they came within the jurisdiction of the juvenile court because they had suffered, or were at serious risk of suffering, serious physical harm, and the parents had made no provision for their support.^[2] (§ 300, subds. (b) & (g).) The juvenile court ordered the minors detained on February 25, 2005.

The mother still could not be located at the time of the jurisdictional hearing. She had a history of methamphetamine use and established a pattern of abandoning the minors for weeks at a time.

Petitioner had a history of illegal drug use and was a registered drug offender. His arrest history dates back to 1990, and he had a recent history of arrests and incarceration, including arrests within the preceding two years for second degree burglary, theft, and possession of a controlled substance. At the time the Agency placed the minors into protective custody, petitioner was in jail on grand theft charges. Although he was subsequently released, petitioner was placed on three years probation in early March 2005, and at the time of the jurisdictional hearing it was unknown whether he would soon be remanded back into custody on pending charges. The social worker concluded at the time of the jurisdictional hearing that petitioner was unable to care for the minors. In addition to mentioning his criminal history and the possibility of further incarceration, the case worker expressed concern that he had provided evasive and inconsistent answers regarding his place of residence. The case worker also pointed out that he had provided inconsistent information concerning his employment. It appeared petitioner did not have stable employment and was looking for work.

Petitioner requested a contested jurisdictional hearing but failed to appear at the scheduled hearing on March 23, 2005. The court proceeded on an uncontested basis as to jurisdiction and disposition, adjudged the minors dependents of the court, granted petitioner reunification services, and approved the placement of the minors with their paternal great aunt.

Petitioner's court-ordered case plan included objectives of continuing visitation with the minors, staying free from illegal drugs, complying with required drug tests, obeying the law, following conditions of probation, having and keeping a legal source of income, and obtaining and maintaining a stable and suitable residence for himself and the children. As part of his reunification services, petitioner was required to participate in parenting education, substance abuse outpatient services, a substance abuse twelve-step program, and drug testing. The projected completion date for the case plan objectives was September 7, 2005, slightly more than six months after the Agency removed the minors from their parents' custody.

Although he was required to complete his case plan goals by early September 2005, petitioner did not even contact the social worker concerning reunification services until July 2005, when he reported he had a cell phone number at which he could be contacted. He still did not have a permanent residence. The social worker referred petitioner to an agency for drug testing, outpatient substance abuse treatment, and parenting classes. Petitioner began participating in services at the agency on July 19, 2005. Since enrolling in late July 2005, his attendance was reported to be consistent although he was often late and missed some classes. He tested negative for drugs on six occasions but failed to show for one drug testing appointment. The counselor at the agency expressed her concern about petitioner's tardiness and his long history of drug use, opining that his recovery would be a long process. The social worker commented that relapse is often a part of the recovery process.

According to the social worker at the time of the six-month review, petitioner had not consistently visited with the minors since their initial removal. He had visited twice at the home of the minors' paternal great aunt but was later told he was not welcome in her home for visitation. After petitioner contacted the social worker in July 2005, visits were again scheduled, although he failed to show up for the first visit on July 28, 2005, despite receiving a phone call that morning to confirm the visit. He attended a second visit on August 11, 2005, which went well. The social worker canceled the third scheduled visit due to her illness, but the fourth visit, scheduled for August 25, 2005, was canceled after petitioner was 50 minutes late.

Petitioner was present in court on August 31, 2005, and was ordered to return on October 5, 2005, for the contested six-month review hearing. He failed to appear in court at the contested hearing, however, and his counsel's request for a continuance was denied for failure to show good cause.^[3]

At the six-month review hearing, the court found that returning the minors to petitioner would create a substantial risk of detriment to their safety and well-being. The juvenile court based its finding on facts contained in the social worker's report indicating that petitioner had not participated regularly or made substantive progress in court-ordered treatment programs. Because one of the minor siblings was under the age of three, the juvenile court terminated reunification services in light of clear and convincing evidence that petitioner did not participate regularly in court-ordered treatment programs. The court set a section 366.26 permanency planning hearing for January 25, 2006.

Petitioner filed a timely notice of intent to file a writ petition challenging the setting of a section 366.26 hearing.^[4] After the filing of a petition, we issued an order to show cause and stayed the section 366.26 hearing pending resolution of this writ proceeding.^[5]

DISCUSSION

Petitioner contends the juvenile court erred in finding that returning the minors to his care would create a substantial risk of detriment to their safety or well-being, arguing that the totality of the evidence shows he made sufficient progress to allow the minors to return safely. He also contends the Agency presented little or no evidence of potential detriment to the children. In effect, his challenge is to the sufficiency of the evidence supporting the juvenile court's order.

At a six-month review hearing, the juvenile court must order a dependent child returned to the physical custody of the parent or legal guardian â€