Douglass E. v. Superior Court

Filed 8/3/07 Douglass E. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. William E. Lehnhardt, Judge. Petition denied. Request for stay denied.

Douglass E., Jr., (Douglass) seeks review of juvenile court orders terminating his reunification services to his son, Douglass E., III (the minor), and setting a Welfare and Institutions Code section 366.26 hearing.^[1] He contends the court erred because substantial evidence does not support a finding he had not made substantial progress in the provisions of his reunification plan. We deny the petition.

FACTUAL AND PROCEDURAL BACKGOUND

On December 12, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the eight-month-old minor on the basis of domestic violence between Douglass and the minor's mother, Nikita J. The social worker reported that during an altercation on December 7, Douglass chased Nikita with a pipe and threw a plastic water bottle at her, hitting the minor in the head. The social worker said this was the second incident of domestic violence within the past few weeks. The court detained the minor out of the home.

The social worker reported Douglass denied participating in domestic violence, but admitted he and Nikita had been having problems in their relationship. He said he wanted to reunify with the minor. His reunification plan included a 52-week domestic violence treatment program, individual therapy and parenting education.

At a hearing on February 24, 2006, the court found the allegations of the petition true, ordered Douglass to comply with the provisions of his reunification plan, placed the minor in relative care and ordered supervised visits.

In July 2006, the social worker said Douglass reported he was visiting the minor twice each week, participating in domestic violence treatment and had attended two parenting classes. He said he had not started individual therapy because he had not received referrals for therapists from the previous social worker. However, the social worker's file indicated the previous social worker had provided Douglass with a list of resources for services on three earlier occasions. On July 7, the social worker gave him another list of resources.

At the six-month review hearing on September 7, 2006, the court found the parents had made substantive progress with the provisions of their case plans, but had made only minimal progress in eliminating the causes of the minor's dependency. It ordered the Agency to provide services until the 12-month date.

In a report dated February 7, 2007, the social worker reported Douglass's therapist had terminated him as a client in January because he did not keep appointments and did not pay for the missed appointments. The social worker also reported Douglass had stopped domestic violence treatment sessions, but then reenrolled. In March he resumed therapy.

At the 12-month review hearing on April 5, 2007, Douglass's domestic violence treatment counselor testified Douglass had completed 30 sessions of his 52-week domestic violence group program. He began the program in June 2006, was discharged in early January 2007 because of excessive absences, but reenrolled in late January. The counselor said Douglass was an active participant, accepted responsibility for his actions and did not minimize the effects of domestic violence. He said Douglass's program could be accelerated so that he could complete it in 11 more weeks, but accelerating a program is done only rarely and occurs either when the parent needs to leave the state or the child is in a long-term placement or is successfully reunifying with his or her family.

The supervising social worker testified Douglass had stopped therapy for a time, but recently had had a session with a new therapist. She testified that she recommends a therapist not provide an evaluation of a client until there have been at least three months of weekly sessions. She saw no probability of return of the minor by the 18-month date.

The paternal grandmother testified the minor had been living with her for one and one-half years and that she had been supervising Douglass's weekly visits with him. She said the minor was happy and excited when he saw Douglass.

Douglass testified he had completed a parenting class and 30 domestic violence treatment sessions. He said he had learned to be a better parent and to think before reacting. He testified he had not started individual therapy earlier because he had not received referrals from the former social worker and he had stopped therapy because he did not believe the therapist was helping him. He received a new list of referrals in January 2007. He said he had had four weekly sessions with a new therapist by the time of the hearing.

At the close of the hearing, the court found by clear and convincing evidence there was no substantial probability the minor could be returned safely to Douglass's care by the 18-month date. The court found Douglass had not made substantive progress with the provisions of his case plan; it terminated services and set a section 366.26 hearing.

Douglass petitioned for review of the juvenile court's orders. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.425.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Douglass contends the court erred in terminating his reunification services. He argues he made substantive progress with his case plan, he was attending individual therapy, his domestic violence counselor said he was progressing well and would be able to finish the domestic violence course by the 18-month date, and he was having consistent visits with the minor.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Under section 366.21, subdivision (g)(1), a court may continue a case to the

18-month date only if there is a substantial probability that the child will be returned to the parent's physical custody and safely maintained in the home by that time. In

considering whether to extend the case for 18 months, the court must make all of the following three findings:

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

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

"(C) The parent or 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." (Ibid.)

The court did not err in not finding, as required by the statute, that Douglass had made significant progress in resolving the problems that led to the minor's removal. It also did not err in not finding that he had demonstrated the capacity and ability to complete his treatment plan's objectives and provide safe and effective care for the minor. Substantial evidence supports the court's findings that returning the minor to Douglass's care would pose a substantial risk of detriment and that there was not a substantial probability he could be returned by the 18-month date.

Douglass's reunification plan required he participate in a 52-week domestic violence treatment program, individual therapy and parenting education. The 18-month date was June 7, 2007, less than two months from the April 11, 2007 hearing. Douglass had completed a parenting class, but he had 22 weekly domestic violence group sessions remaining. Even if he attended two domestic violence treatment sessions each week, as he suggests, he would not complete the program by the 18-month date. Douglass delayed in starting therapy, then stopped because he did not think the therapist was helping him. He did not begin treatment with a new therapist for more than three months. He began individual therapy again just weeks before the hearing and had completed only four therapy sessions. The social worker's supervisor testified his therapist would need three months of therapy to evaluate him.

As the court observed, Douglass delayed in starting services, then discontinued domestic violence treatment and therapy for a time before beginning again. Because his participation was inconsistent, he was not able to show he had made sufficient progress in services to allow the court to find a probability the minor could be returned safely to his care by the 18-month date.

Substantial evidence supports the finding Douglas had not made substantive progress with the provisions of his case plan, and supports the orders terminating his services and setting a section 366.26 hearing.

DISPOSITION

The petition is denied. The request for a stay of the proceedings is denied.

IRION, J.

WE CONCUR:

HALLER, Acting P.J.

MCDONALD, J.

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^[1] All statutory references are to the Welfare and Institutions Code.