Michael D. v. Sup

Filed 8/30/06 Michael D. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert Anspach, Judge.

Kenneth Mason, for Petitioner.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court removing his children, Michael and Monica, and setting a Welfare and Institutions Code^[1] section 366.26 hearing to implement a permanent plan of adoption. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings in this case were initiated in July 2000 when the Kern County Department of Human Services (department) took then three-year-old Matthew and one-year-old Monica into protective custody after their parents, petitioner and M.D.,^[2] were arrested for manufacturing methamphetamine in their home. Petitioner and M.D. have a history of alcohol and drug abuse and M.D. suffers from bipolar disorder. The juvenile court assumed dependency jurisdiction, the children were placed in foster care and the parents were provided 18 months of reunification services after which the children were returned to their custody under family maintenance in January 2002.

In March 2002, the children were removed on a section 387 supplemental petition (supplemental petition) after M.D. allegedly bit Matthew for biting his sister. In June 2002, at the dispositional hearing on the supplemental petition, the court terminated reunification services and set the matter for a section 366.26 hearing.^[3] In January 2003, the court conducted the section 366.26 hearing and ordered the children into long-term foster care with weekly unsupervised visitation.

The children remained in foster care until October 2005 when the court returned them to petitioner and M.D.'s custody under family maintenance, which required them to provide the children a safe, adequate and appropriate home environment in keeping with community standards. A Court Appointed Special Advocate (CASA) was appointed to monitor the children's well-being.

Over the years following the children's initial removal, petitioner's physical and emotional health declined and he was not able to do much more than dress and feed himself. M.D. was the primary caretaker for them both but she also suffered severe emotional and physical limitations. Chronic depression caused her to sleep during the day sometimes up to six hours in the afternoon. She also has chronic obstructive pulmonary disease. To make matters worse, both children were diagnosed and medicated for Attention Deficit Hyperactivity Disorder.

Initially, M.D. was able to manage the household and care for the children but that changed rather quickly. On January 6, 2006, during an unannounced visit to the home, the social worker found the children unkempt and broken glass and plastic in the front yard. She also observed dishes in the sink and clutter and food crumbs on the children's bedroom floors and smelled urine in the bathroom. The social worker told the parents their home needed to be cleaned and that she would return. When the social worker returned three days later, the home was clean.

In mid-January, petitioner was admitted to the hospital for eight days. On February 3, just a little over a week after he returned home, M.D. was bitten on the stomach by a brown recluse spider and developed an infection. She was admitted to the hospital for two weeks where her abscess was drained and she was administered intravenous antibiotics. While hospitalized, M.D. left the children in petitioner's care and arranged for a church member to take them to school and for her sister to help petitioner with the cleaning and cooking. M.D.'s sister helped petitioner the first week but didn't return the second week. M.D. also instructed petitioner and her ex-brother-in-law in how to administer the children's medication.

On February 15, the social worker visited the home and noted dirty dishes on the kitchen table, a cereal bowl with congealed milk, clothing and trash on the floors, dirty pull-ups and used sanitary napkins on the floor in the children's bedroom and the smell of urine in the children's room. Petitioner acknowledged that the house was â€