Francisco F. v. Superior Court

Filed 8/3/07 Francisco F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Charlotte A. Wittig, Juvenile Court Referee.

Mary Rogers, for Petitioner.

No appearance for Respondent.

No appearance for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his daughter L. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

This case concerns L., who at two and a half months of age, suffered a brain injury. As a result, she is developmentally delayed, suffers seizures and is fed through a gastric tube. In August 2006, L.s mother, M.,^[2]left then 13-month-old L. alone in her car seat in a closet with a rag over her mouth and took L.s three-year-old brother, F., and L.s three teenage half-siblings shopping. Petitioner is L. and F.s father and was living with the family at the time.

The social services agency (agency) removed the children from petitioner and M.s custody and filed a dependency petition on the childrens behalf, alleging M. neglected the children and petitioner knew of the neglect but failed to protect them from it. The juvenile court sustained the petition and ordered a plan of reunification for both parents. Petitioners reunification plan required him to complete a parenting course and submit to random drug testing. L. and F. were placed in separate foster homes and L.s half-siblings were placed with their father.

Petitioner completed a parenting course in November 2006 and tested negative on his drug screens until March 2007 when he tested positive for methamphetamine. He and M. also continued to live together and conceived a third child due in April 2007.

In its six-month status review, the agency informed the court petitioner and M. made substantial progress in their reunification plans and recommended the court return F. to their care under family maintenance and grant the agency discretion to transition L. to their custody. However, the agency changed its recommendation with respect to L. after concluding M. was not bonded to her. Since petitioner and M. continued to live together, the agency further concluded it would be detrimental to return L. to petitioners custody. Consequently, the agency recommended the court continue reunification services as to L.

Minors counsel challenged the agencys recommendation and the matter was set for a contested hearing, which concluded on May 8, 2007. At the hearing, petitioner testified he and M. separated several weeks before the hearing. Neither petitioner nor M. asked to have L. returned to their custody. Rather, they both sought custody of F.

Petitioner took the position he was denied reasonable services because the agency did not refer him for a substance abuse assessment after his positive drug screen. The case worker confirmed that fact, explaining he deferred asking for a modification of petitioners plan to include the assessment until the court conducted the six-month review hearing.

Petitioner also argued he substantially complied with his case plan by completing his parenting course and regularly drug testing. He testified that he only used methamphetamine at the time he tested positive in March. Petitioner also argued he was prepared to care for F. He was living with his mother and working full time. He could not, however, be certain his romantic relationship with M. was over.

Following testimony, county counsel advised the court neither petitioner nor M. were bonded to L. and that M.s neglect was related to her lack of empathy toward L.s special needs. In light of that, county counsel recommended the court return F. to M.s custody, offer petitioner reunification services as to F. and offer both parents services as to L. At the conclusion of the hearing, the court found it would be detrimental to return F. and L. to either parent but continued petitioner and M.s reunification services as to F. The court modified petitioners reunification plan to include a substance abuse evaluation. The court further found there was not a substantial probability L. could be returned to either parent within another six months and terminated petitioner and M.s reunification services as to L. Consequently, the court set a section 366.26 hearing to consider a permanent plan for L. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in terminating reunification services at the six-month review hearing when there was a substantial probability L. could be returned to his custody within another six months. We disagree.

When the juvenile court determines that a child who was under the age of three years when removed from parental custody cannot be safely returned after six months of reunification efforts, the court must proceed to permanency planning where, as here, it finds the supervising agency provided reasonable services. ( 366.21, subd. (e).) An exception is made where the court finds a substantial probability the child may be returned to parental custody within another six months. (Ibid.) However, such a finding requires the court to make three affirmative findings, at least one of which is absent here. The court must find: (1) the parent regularly visited the child; (2) the parent made significant progress in resolving the problem prompting removal of the child; and (3) the parent demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and well-being. ( 366.21, subd. (g)(1).) The appellate record supports a finding petitioner regularly visited L. Further, since M.s negligence was the main reason L. was removed, it could be argued petitioners act of separating himself from M. significantly resolved the problem necessitating L.s removal. One could even argue petitioners drug use did not factor into L.s removal and, even if it did, one positive drug screen should not compel a finding he failed to resolve the problem prompting L.s removal. However, what militates against a substantial probability of return in this case is petitioners lack of bond with L. and the apparent lack of desire to have custody of her. The capacity and ability to complete a plan of reunification and provide for a childs protection and well-being presumes a caring commitment to the child, which is not presented by these facts. Consequently, we affirm the courts conclusion there is not a substantial probability L. could be returned to petitioners custody within another six months. For that reason, we also affirm the juvenile courts orders terminating petitioners reunification services as to L. and setting a 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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^*Before Vartabedian, Acting P.J., Harris, J., and Hill, J.

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

^[2] M. did not file a writ petition in this case.