William K. v. Sup. Ct.

Filed 4/5/07 William K. v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Julia Craig Kelety, Judge. Petition denied.

William D. contends the court erred when it set a hearing to select and implement a permanency plan for his son, Edward K., under Welfare and Institutions Code section 366.26.^[1] We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

William K. and C.G.^[2]are the parents of Edward K., born in October 2001. The early dependency proceedings are detailed in the recent unpublished case, In re Edward K. (Mar. 29, 2007; D048899 [nonpub. opn.]). We briefly summarize the facts here.

On August 1, 2005, the San Diego County Health and Human Services Agency (Agency) investigated allegations of child abuse based on an incident of domestic violence between C.G. and her boyfriend. The Agency offered C.G. voluntary services. On September 1 C.G. informed the Agency she could not care for Edward. The Agency removed Edward from her custody and filed a petition alleging Edward was at substantial risk of serious harm because of an extensive history of domestic violence in C.G.'s home, including 10 documented altercations between C.G. and her boyfriend, and earlier incidents of domestic violence between C.G. and William. ( 300, subd. (b).)

C.G. told social workers William had not spent much time with Edward. She believed he was homeless and lived in his car. William last saw Edward in July 2005. On September 27 C.G. submitted to jurisdiction, and the court removed Edward from her custody and ordered a plan of family reunification.

William became aware of Edward's circumstances shortly after the combined jurisdiction and disposition hearing. He did not meet with a social worker until January 2006. (In re Edward K., supra, (D048899 [nonpub. opn.]).) At their initial meeting, the social worker offered William reunification services. William believed he was not at fault for Edward's removal and was entitled to custody. He told the social worker that he was not interested in participating in services and refused to visit Edward in foster care. On May 1 William filed a petition under section 388 asking the court to place Edward in his care.

The section 388 hearing was held concurrently with the six-month review hearing on May 22, 2006. The court denied William's petition for modification and found there would be a substantial risk of detriment to return Edward to parental custody. The court extended C.G.'s reunification services to the 12-month review date. William was not willing to comply with services, including recommended treatment for domestic violence. The court decided not to order services for William.

William appealed the findings and orders of May 22, 2006. That appeal was pending at the time the petition and response were filed in this matter. On March 29, 2007, this court affirmed the findings and orders of the juvenile court. (In re Edward K., supra, (D048899 [nonpub. opn.]).)

William, who had not seen Edward since July 2005, began visiting him in May 2006. According to the foster father, who supervised the visits, William did not interact with Edward. William stated he did not need to play or interact with Edward as long as Edward "knows I'm here." Edward had special needs. His speech and language skills were delayed. Because of hyperactive behaviors, he required a highly structured environment and a high level of supervision. At times, Edward was very disruptive at school and at home. He participated weekly in individual counseling and speech therapy. Edward's school held four meetings to address his special education needs. Of these, William attended one meeting.

The contested 12-month review hearing was held on October 25 and December 11, 2006. The social worker testified William did not participate in services. She provided William with referrals to individual counseling, domestic violence treatment and parenting classes in January and March 2006, and also mailed referrals to him at a later date. After the October 25 hearing, at the court's direction, the social worker sent William another set of referrals for services. She selected a parenting class specifically structured to help William learn about and manage Edward's behavioral issues. The social worker believed William did not have the skills to adequately deal with Edward's emotional problems, and William's unresolved history of domestic violence also posed a risk to Edward's safety.

William asked the court to place Edward in his care at his girlfriend's home, with whom he had a baby daughter. William's girlfriend did not have a criminal record or history of child welfare referrals. The Agency had evaluated the home and found it would be appropriate for Edward. However, the social worker did not know how often William was in the home. He told her he was not on the lease, did not pay rent and lived with relatives part-time.

William testified he lived with his girlfriend "off and on" since May or June 2005, but was now living with her. He had been unemployed since December 2005. Before he met his girlfriend, he was homeless. William now believed it would be helpful for him to take a parenting class. Although he did not need to participate in anger management and domestic violence treatment, he was willing to do so if required.

The court found that returning Edward to William's physical custody would create a substantial risk of detriment because of William's unstable housing, unemployment, refusal to participate in services, past domestic violence, and lack of responsibility. The court found there was not a substantial probability Edward could be returned to William's care by the 18-month review date, and set a section 366.26 hearing to select and implement a permanency plan for Edward.

William and C.G. each filed a notice of intent to file a writ petition. On January 30, 2007, C.G.'s attorney notified this court there were no viable issues for writ review and he would not file a petition for writ of mandate under California Rules of Court, rules 8.452 and 5.600. This court dismissed the case as to C.G. on February 6. William filed a timely petition for writ of mandate. This court issued an order to show cause and the parties waived oral argument.

DISCUSSION

I

Introduction

William contends insufficient evidence supports the court's finding there would be a substantial risk of detriment to Edward were he placed in William's custody. He argues he and his girlfriend were appropriately caring for their infant daughter and her older child, and the social worker found the home to be suitable for Edward. William asserts the court's concerns about his stability, lack of employment and history of domestic violence could be addressed with family maintenance services. William also contends the court erred when it did not continue the case to the 18-month review date.

The Agency contends substantial evidence supports the court's finding of detriment, and argues risk factors include Edward's age and serious emotional dysfunction, William's refusal to participate in services, his lack of skills to meet Edward's emotional needs, instability in housing and employment, and unresolved history of domestic abuse. The Agency asserts William did not demonstrate he had the capacity and ability to complete treatment plan objectives in the three months remaining before the 18-month review date.

II

The Court Did Not Err When It Referred The Case To A Permanency Plan Selection And Implementation Hearing Under Section 366.26

A

At the 12-month review hearing, the court is required to order the return of the child to the physical custody of the child's 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 has the burden of establishing that detriment. ( 366.21, subd. (f).)

Under section 366.21, subdivisions (g)(1)-(3) and (h), if the child is not returned to parental custody at the permanency hearing, the court has three options. It may: (1) continue reunification services for up to six months; (2) terminate reunification services and set a hearing under section 366.26; or (3) order that the child remain in long-term foster care. If the court continues reunification services, the additional reunification period cannot extend beyond the 18-month review date unless extraordinary circumstances apply. ( 366.21, subd. (g)(1); Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778.)

In order for the court to continue reunification services, it must find "there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." ( 366.21, subd. (g)(1).) The court must find the parent met each prong of a three-prong test before extending the case. (Ibid.)

We review an order setting a permanency planning hearing to determine if it is supported by substantial evidence. If substantial evidence is present, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The burden is on the petitioner to show the evidence is insufficient to support the trial court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

Substantial Evidence Supports The Court's Finding There Would Be A Substantial Risk Of Detriment To Edward Were He Returned To William's Custody

Substantial evidence supports the court's finding that returning Edward to William's custody would create a substantial risk of detriment to Edward's safety, protection, or physical or emotional well-being. ( 366.21, subd. (f).) Even had William resolved issues related to domestic violence, substance abuse, and his ability to maintain and support a home, which he did not, the court could reasonably conclude William's lack of understanding of and indifference to Edward's emotional needs would create a substantial risk of detriment to Edward.

The social worker testified William did not have the skills to adequately deal with Edward's emotional problems. Edward had clinically significant behavioral difficulties in areas of hyperactivity and aggression. One foster care placement failed because of his extreme behaviors. Edward required a highly structured environment and a high level of supervision. Edward qualified for special education services but William participated in only one of four meetings to develop an individual education plan for Edward. The social worker talked to William on several occasions about the benefits of participating in a parenting class specifically designed to address Edward's needs. William refused to take steps to improve his ability to manage Edward's problematic behaviors and to provide consistent care.

William refused to visit Edward in foster care until late May 2006. From this we draw the reasonable inference William was more concerned about his own agenda than Edward's interests in regular contact. When William began visiting Edward, he sat and chatted with the foster father rather than engage Edward. The quality of William's interactions with Edward did not improve until September 2006. The record shows William lacked the "basic parenting abilities" required to meet Edward's needs. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 773-774.)

In addition, the court expressed its concern that Edward's return to William would in fact be a placement with William's girlfriend, who appeared to be the responsible party in that relationship. Were it not for his girlfriend's situation, William would not have a home or any means to support himself and Edward. In view of William's history of instability and reliance on others for support, we draw the reasonable inference William's circumstances were not sufficiently stable to provide a home to Edward, who needed structure, consistency and a parent who was able to competently and sensitively meet his physical and emotional needs. Substantial evidence supports the court's determination that return to parental custody would create a substantial risk of detriment to Edward's safety, protection, or physical or emotional well-being. ( 366.21, subd. (f).)

C

The Court Did Not Err When It Found There Was No Substantial Probability That Edward Would Return To William's Custody By The 18-Month Review Date

To find a substantial probability of return, the court is required to find all of the following:

"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.

"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.

"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." ( 366.21, subd. (g)(1)(A)-(C).)

Here, substantial evidence supports the determination that William did not meet any of these requirements.

First, William's visitation with Edward was not regular and consistent throughout the case. ( 366.21, subd. (g)(1)(A).) Despite the encouragement of the foster father and social worker, William refused to visit Edward as long as he remained in foster care. Although William began visiting Edward after the six-month review hearing, the juvenile court does not have to ignore William's noncompliance with visitation during the first eight months of Edward's dependency. (Cf. In re Brian R. (1991) 2 Cal.App.4th 904, 918.)

Second, William did not make any progress in resolving the problems that led to Edward's removal from the home. ( 366.21, subd. (g)(1)(B).) The social worker identified serious risk factors that prevented Edward's placement in William's care. These risks included William's history of domestic violence, past alcohol abuse, including a 2004 conviction for driving under the influence, recent homelessness, inconsistent contact with Edward, and lack of responsibility for Edward. The Agency and the court offered to provide William services in January, March, May, and October 2006. William insisted he did not need services and refused to cooperate.

Finally, in view of William's insistence he did not need services, he did not demonstrate the ability or the capacity to complete the treatment plan and to provide for Edward's safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1)(C).) There is no stronger evidence of a parent's lack of ability and capacity to complete a treatment plan than the parent's adamant refusal throughout the dependency case to participate in services. William's actions throughout the proceedings demonstrate his insensitivity to Edward's needs.

There is no doubt the court correctly determined that continuing the case until the 18-month review date would not result in "a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time. . . ." (366.21, subd. (g)(1).) We conclude the court did not err when it set a hearing to select and implement a permanency plan for Edward under section 366.26.

DISPOSITION

The petition is denied.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] Unless specified, statutory references are to the Welfare and Institutions Code.

^[2] C.G. is not a party to the writ proceeding and is mentioned only when relevant.