Ricardo G. v. Superior Court

Filed 10/2/07 Ricardo G. v. Superior Court CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; Petition for extraordinary writ. Steven Berman, Referee. Writ denied.

Law Offices of Alex Iglesias, Pamela Rae Tripp and Henry Parks for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Liana Serobian, Deputy County Counsel, for Real Party in Interest.

* * * * * *

Petitioner, Ricardo G., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code,  366.26, subd. (l);^[1]Cal. Rules of Court, rule 8.452.) We deny the petition.

I. PROCEDURAL HISTORY AND STATEMENT OF FACTS

Dependency Petition. On November 15, 2005, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of petitioners biological children, Ricardo, Jr., (born Aug. 1997) and Alejandra (born Jan. 1999) and their half-sibling, Brenda (born July 1994). It was alleged that for the past eight years the children had been exposed to violent domestic altercations between their mother, Martha G., and petitioner; that both parents had a history of alcohol and drug abuse; and both parents were current users of drugs and alcohol.^[2]

Detention Hearing. Petitioner did not appear at the initial detention hearing. The juvenile court found that a prima facie showing supported the petition, declared the children a sibling group and detained them with their maternal aunts, Margarita G. and Susana G. DCFS was ordered to provide reunification services. Petitioner was directed to enroll in a drug and alcohol rehabilitation program with random drug testing and to participate in domestic violence counseling. He was to be allowed monitored visitation following contact with DCFS.

Pretrial Resolution Conference. Petitioner did not appear at the pretrial resolution conference held on January 9, 2006. The juvenile court found petitioner to be the presumed father of Ricardo, Jr., and Alejandra and found Gilberto F. to be Brendas alleged father.

Adjudication Hearing. Petitioner made his first appearance on January 31, 2006, at the jurisdiction and disposition hearing. DCFS reported that petitioner had a criminal history spanning from 1986 to 2004, which included convictions for burglary, robbery, infliction of corporal injury to a spouse, being under the influence of drugs, and criminal threats. In 2004, petitioner had an outstanding arrest warrant for being a deportable alien.

The children reported that their parents argued all the time, yelled at one another, called each other derogatory names, consumed excessive amounts of alcohol, got drunk and were violent. The children saw petitioner punch their mother all over her body, slap her face and, on one occasion, stab her in the forehead with a spoon, which caused her to bleed. When she would try to run away, petitioner would grab her, pull her back and continue hitting her. On one occasion, when Brenda tried to defend her mother, petitioner tried to punch Brenda, but missed and punched her mother instead. On another occasion, when Brenda tried to dial 911, petitioner threatened to break her arm if she made the call. When Brenda reached for the telephone, petitioner twisted her arm, causing it to turn purple. When Brenda was five years old, the family was involved in a car accident, which petitioner provoked. Petitioner was arrested and deported to Mexico. However, the childrens mother went to Mexico in search of him and petitioner eventually returned to the United States and resumed living with the family. Although the children asked their mother to separate from petitioner, she continued to allow him contact with them. The children told the social worker that they were afraid of petitioner and did not want to see him.

In January 2006, due to threats made by petitioner, Margarita G. and Susana G. asked that the children be removed from their home as they were concerned for their safety and that of the children.

The juvenile court sustained the dependency petition, declared the children dependents of the court, and ordered DCFS to provide petitioner with family reunification services. Petitioner was ordered to complete 10 consecutive clean random drug tests, and if a test was missed or positive, then petitioner was to complete a drug rehabilitation program with random testing. Petitioner was also ordered to participate in individual counseling to address all case issues, including parenting education and a 52-week domestic violence program. Petitioner was granted monitored visitation.

Six-Month Status Review Hearing. On August 1, 2006, the juvenile court held a section 366.21, subdivision (e) status review hearing. DCFS reported that on March 20, 2006, petitioner enrolled in a domestic violence program with Saddle Group Counseling Domestic Violence Prevention (Saddle Group). On May 13, 2007, he enrolled in a parenting class with the same agency. However, by May 27, 2006, petitioner had attended only 8 out of the 52 domestic violence sessions and was therefore terminated from the program. Later, he was terminated from the parenting class for nonattendance. On July 1, 2006, petitioner reenrolled in the domestic violence program and in the parenting class. On July 20, 2006, just days before the six-month status review hearing, petitioner enrolled in individual counseling.

Between January 31, 2006, and June 12, 2006, petitioner missed four random drug tests. On April 25, 2006, he tested positive for amphetamine and methamphetamine. Despite the positive test results, petitioner denied using drugs. On June 27, 2006, petitioner enrolled in an outpatient drug rehabilitation program at the Tarzana Treatment Centers (Tarzana) and was reportedly active in his program.

Petitioner had maintained consistent contact with DCFS and had visited the children regularly except for two excused absences. Although petitioner and the childrens mother were instructed not to visit the children at the same time, they attempted to do so. On one occasion, they were observed arguing.

The juvenile court found that petitioner was in partial compliance with the case plan and ordered his reunification services to continue.

Twelve-Month Status Review Hearing. On January 30, 2007, a section 366.21, subdivision (f) hearing was held. DCFS reported that petitioner had stopped attending his Saddle Group parenting education class. However, on June 27, 2006, he enrolled in a parenting class at Tarzana, a class he completed on January 12, 2007. Petitioner continued to attend his Saddle Group domestic violence program, and on January 13, 2007, the program director advised DCFS that petitioner had completed 29 out of 52 required sessions, and now understood the difference between discipline and punishment, the negative effects of punishment, and that children are not property.

Petitioner had attended only four individual counseling sessions since his enrollment on July 20, 2006. On August 31, 2006, the social worker had provided him with additional referrals for low-cost or no-cost individual counseling. Petitioner attended his fourth individual counseling class on November 13, 2006. Thereafter petitioner was terminated from the program because of missed sessions. Petitioner told the social worker that he believed the other people receiving therapy looked odd and this made him question why he needed to be in therapy. The social worker reminded petitioner that the juvenile court had ordered him to enroll in individual therapy.

Petitioner completed his Tarzana drug rehabilitation program on December 20, 2006. On January 4, 2007, he tested positive for methamphetamine. After his positive test, he denied having used drugs, claiming the positive test had been caused by pain relief medication he was taking, which had codeine in it. However, according to the laboratory technician where petitioner tested, petitioner tested negative for codeine on January 4, 2007, and codeine, an opiate, could not be related to a positive test for methamphetamine.

Despite missing a couple of visits, petitioner consistently visited the children and the visits reportedly went well. Susana G. stated that if the parents failed to reunify with the children, she was interested in becoming their legal guardian.

The juvenile court found that petitioner was in partial compliance with the case plan and ordered his family reunification services to continue. Petitioner was ordered to enroll in a full drug rehabilitation program.

Eighteen-Month Status Review Hearing. On May 3, 2007, the juvenile court held a section 366.22 hearing. DCFS reported that on February 14, 2007, petitioner began attending 12-step meetings, and that on February 6, 2007, he had reenrolled in Tarzanas drug program. In a letter dated April 9, 2007, petitioners primary counselor, Veronica Moya, advised that petitioner had attended a total of 43 group sessions, 22 support meetings and 7 individual sessions. According to Moya, petitioner appeared to be accepting full responsibility for his previous mistakes and was willing to better his life. In a letter dated April 26, 2007, Moya wrote that it appeared petitioner had attended the required group and individual sessions and had tested negative for drugs 10 times since his January 4, 2007 positive test.^[3] In addition, he had demonstrated an ability to identify negative consequences from a drug addicted lifestyle and had been making the necessary changes in his life. Petitioner was expected to complete the drug program on June 8, 2007.

Petitioner continued to have monitored weekly visits with the children, with the paternal grandmother monitoring the visits. The visits had gone well and the children enjoyed visiting with petitioner. Petitioner wanted the children returned to his care. Petitioner lived with his paternal grandmother and paternal uncle, and the house was observed to be clean. The children wished to return to their parents, but if that was not possible, they were open to the possibility of adoption by their maternal aunts. Brenda wanted to live with her maternal aunts if petitioner regained custody of Ricardo, Jr., and Alejandra. On May 22, 2007, Susana G. and Margarita G. met with a DCFS adoption social worker to discuss the possibility of adoption. DCFS recommended that the juvenile court terminate reunification services for petitioner and set the matter for a section 366.22 permanency planning hearing.

The juvenile court continued the section 366.22 hearing for contest and ordered overnight weekend visits for the children with their maternal aunts.

Contested 18-Month Status Review Hearing. A contested section 366.22 hearing was held on June 6, 2007. The court admitted into evidence DCFS reports dated January 30, 2007, and May 3, 2007, and DCFS logs spanning from December 2006 to May 2007. The court took judicial notice of the dependency file. The juvenile court also admitted into evidence, at petitioners request, a verification that on June 5, 2007, petitioner successfully completed Tarzanas outpatient treatment program, and that petitioner continued to work with his 12-step sponsor and attend meetings. The juvenile court also admitted into evidence a progress letter from Saddle Group dated June 3, 2007, which stated that petitioner had completed 47 out of the 52 required domestic violence sessions. Petitioner reported to the program director that he had been using his time outs effectively, [was] aware of his anger cues and to date [was] on track with his program.

Also admitted into evidence was petitioners stipulated testimony that he had completed an additional drug rehabilitation program at Tarzana and was currently completing his domestic violence counseling. Petitioner claimed he had missed some of the domestic violence sessions because of a five-day hospitalization occurring in May 2007.

The juvenile court noted that petitioner had not yet completed the individual counseling ordered by the court. DCFS, however, pointed to the April 26, 2007 letter from Tarzana, which stated that Tarzana provided both group and individual counseling. Counsel for DCFS believed that this counseling covered both the drug counseling and individual therapy requirements.

Although petitioner admitted he had not completed the domestic violence program, he nonetheless argued that he was in substantial compliance with the case plan. He noted that he expected to complete the domestic violence counseling the following month, and claimed that he had already completed the individual counseling requirement. According to petitioner, DCFS had approved the individual counseling offered by Tarzana. He therefore argued that he had completed that aspect of the case plan. Petitioner asked that all the children, including Brenda, be returned to his care. Alternatively, petitioner asked for unmonitored overnight visits.

DCFS, noting that the case had been initiated more than 18 months prior to the section 366.22 hearing, claimed that petitioner was only in partial compliance with the case plan because he had tested positive for drugs and had failed to drug test on a number of occasions. In addition, he had not yet completed his domestic violence program.

The childrens attorney joined the arguments made by DCFS and pointed out that Ricardo, Jr., and Alejandra wanted to be placed with Brenda, and that Brenda wanted to be placed with her maternal aunts and not with petitioner.

The juvenile court first noted that petitioner was not entitled to custody over Brenda because he was not her presumed father. The juvenile court then stated that although petitioner had made progress with respect to his drug program, no evidence had been presented to show he had made any progress with respect to other aspects of the case plan.

The juvenile court found that petitioner had not complied with the individual therapy component of the case plan because the counselor at Tarzana was a drug counselor, not someone licensed or accredited to provide therapy, and Tarzana was not on the list of referrals for individual therapy DCFS had provided to petitioner. The juvenile court then questioned petitioner about Tarzanas recommendation that he continue in the 12-step program. Petitioner explained that he was on step 1 of the 12-step program and that he had only recently been assigned a sponsor. The juvenile court indicated that even if it did not count petitioners recent positive test for opiates, he had only been clean for four months and, considering his history of relapse, that was not a long time.

The juvenile court found that petitioner was in partial compliance with the case plan, and that return of the children to petitioner would create a substantial risk of detriment to their well-being. The juvenile court concluded by saying: The case is clearly not over. Theres at least four months for a [section 366.26] hearing. [Petitioner] has the opportunity to complete these programs and make some kind of showing that hes done individual counseling and that hes gained from it, and hes gained from the drug programs, that hes gained from the domestic violence programs. A [section] 388 certainly is possible, but at this point, releasing [Ricardo Jr., and Alejandra] to [petitioner] . . . would be premature.

The juvenile court terminated reunification services and set the matter for a section 366.26 hearing to select and implement permanent plans for the children.^[4] The court ordered unmonitored visits for petitioner as long as he tested negative for drugs. DCFS was given discretion to liberalize petitioners visits to include weekends and overnights. This petition followed.^[5]

II. CONTENTIONS

Petitionercontends the evidence was insufficient to support the juvenile courts finding that there was a substantial risk of detriment should the children be returned to his custody.^[6]

III. DISCUSSION

A. Risk of Detriment.

A determination that a child will suffer detriment if returned to the physical custody of the parent is reviewed on appeal for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] (In re N.S. (2002) 97 Cal.App.4th 167, 172.)

Although the law requires a court to focus on the reunification of the family until an order terminating parental rights is entered, the law also provides for an 18-month period in which to accomplish reunification. While there is a strong preference for reunification, the safety and well-being of the children is always a primary concern. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.) At the end of the 18-month period during which reunification services are provided, the court must make a decision whether to return the children to the parent or whether their well-being dictates that other placement for the children is in order. (Id. at p. 308.) If the court finds by a preponderance of the evidence that return of the children to the parent would create a substantial risk of detriment to their physical or emotional well-being, the court must develop a plan for the childrens placement. (Ibid.)

The social services department has the burden of establishing the detriment.

( 366.22, subd. (a); Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 399.)

In making its determination, the juvenile court must review and consider reports prepared by the social worker and any child advocate appointed, the efforts or progress, or both, demonstrated by the parent and the extent to which the parent cooperated and availed him or herself of services provided. A parent must do more than simply comply with the technical requirements of the reunification plan. The juvenile court must also consider the progress the parent has made towards eliminating the conditions leading to the out-of-home placement. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139.) The failure of a parent to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.22, subd. (a).)

The juvenile court must specify the factual basis for its conclusion that return would be detrimental to the child. ( 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(3).)

The children came to the attention of DCFS because the parents had abused drugs and alcohol and had exposed the children to violent domestic altercations. On January 31, 2006, the juvenile court directed petitioner to complete a parenting class and a 52-week domestic violence program, and to participate in individual counseling to address all case issues. Petitioner was also directed to produce 10 consecutive clean drug tests, with the proviso that if he did not test or tested positive for drugs he would be required to complete a drug rehabilitation program. During the first six months of the dependency period, petitioner missed drug tests, tested positive for methamphetamine in April 2006, and was in denial of his drug use. By the 12-month status review hearing, petitioner had completed a parenting class and an outpatient drug program at Tarzana. However, on January 4, 2007, just two weeks after completing his drug program, he tested positive for methamphetamine. Petitioner again denied using drugs. Although the social worker provided petitioner with additional referrals for individual counseling, and repeatedly explained to petitioner that the juvenile court had ordered him to participate in individual counseling, petitioner refused to attend therapy and believed he did not need it.

By the 18-month status review hearing in June 6, 2007, over 19 months after the children were first removed from their parents, petitioner had completed another six-month drug program. However, on February 28, 2007, he tested positive for opiates. And, he had not yet completed the 52-week domestic violence program he began in March 2006. Moreover, petitioner was on step 1 of the 12-step program he started in February 2007.

Petitioner, citing Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, claims the juvenile court should have seen his February 28, 2007 dirty drug test within the totality of his drug testing for the previous year. Petitioners reliance of Rita L., a case involving ingestion of Tylenol with codeine without a proper prescription, is misplaced. Petitioners January 4, 2007 dirty test for methamphetamine was properly considered, especially in light of the fact that petitioner had no reasonable explanation for the positive result. As for petitioners February 28, 2007 positive test for opiates, the juvenile court indicated that even if it did not count this test, petitioner had been clean for less than four months, and this was not a long time given his years of drug addiction and history of relapses.

Petitioner claims the juvenile court erred in finding that he failed to complete the individual counseling component of the plan. The record reflects that petitioner stopped attending individual counseling in November 2006. However, at the June 6, 2007 hearing, counsel for DCFS stated her belief that petitioner had completed the individual therapy component of the case plan by participating in individual counseling sessions as part of his drug program at Tarzana. The juvenile court disagreed, finding that petitioner had failed to complete the individual counseling ordered by the court. Substantial evidence supports the juvenile courts finding. DCFS had previously reported that petitioner was not in compliance with the individual counseling; DCFS had provided petitioner with additional referrals; and Tarzana, where petitioner completed the drug program, was not on the list of referrals for individual counseling.

Petitioner points to the juvenile courts decision to liberalize his visitation to unmonitored visitation once a week, and claims the decision is inconsistent with the courts finding returning Ricardo, Jr., and Alejandra to petitioners care and custody would create a substantial risk of detriment to their well-being. The record makes clear, however, that the courts order liberalizing petitioners visitation was directed at providing petitioner an incentive for continuing to comply with the case plan.

The evidence presented to the juvenile court was reasonable in nature, credible and of solid value and thus substantial proof of the essentials of the case. (County of Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d 831, 845.) We therefore conclude that the juvenile courts order terminating petitioners reunification services and setting a section 366.26 hearing is supported by substantial evidence.

B. Burden of Proof

Petitioner notes that DCFS had the burden of proving by a preponderance of the evidence that return of the children would create a substantial risk of detriment to the childrens well-being. Petitioner claims the juvenile court improperly shifted the burden of proof to him. We disagree. The juvenile court stated: I have no evidence from the Department or from father that hes made any progress other than the fact that he went there to take up space. I dont know whether its the Departments fault or the fathers fault, but theres no evidence. . . . I just know that father took a program, sat in a room, and somebody talked around him. I dont know that hes learned anything, whether hes gained anything because theres nothing from any program. This statement merely set forth the fact that the progress reports from the programs petitioner had completed or were participating in were inadequate; that none evaluated petitioners progress or made any recommendations relevant to the issues of the case. We do not interpret the courts remarks as shifting the burden of proof, but as a statement concerning the lack of evidence as to petitioners progress. Moreover, as previously noted, evidence was presented to show that petitioner did not complete aspects of the case plan. Such a failure is prima facie evidence that return would be detrimental. ( 366.22, subd. (a).)

C. Extension of Reunification Services.

Petitioner asks that he be provided with additional reunification services. However, petitioner did not make such a request in the juvenile court. It is therefore waived. (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 123.)

We would deny petitioners request even if it had not been waived. The Legislature has determined that 18 months is the maximum amount of time the juvenile court may offer family reunification services. ( 361.5, subd. (a), Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) Although courts may extend the reunification period beyond the 18-month limit, such extensions are rare, and include situations such as where no reunification plan was ever developed for the parent, a reunification plan was developed but never implemented, or a parent has made every effort to comply, but is hospitalized for most of the reunification period. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1211; In re Elizabeth R. (1995) 35 Cal.App.4th 1774.) No such circumstances are present in this case.

IV. DISPOSITION

The order to show cause is discharged and the petition for extraordinary writ is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

______________________, P. J.

BOREN

_______________________, J.

DOI TODD

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

^[2] Martha G. is not a party to this petition.

^[3] Although petitioner tested positive for opiates and morphine on February 28, 2007, he later produced two prescriptions for pain medications, both of which had codeine, filled in June 2006 and April 2007.

^[4] The juvenile court found that the childrens mother was not in compliance with the case plan and terminated her reunification services.

^[5] DCFS claims this petition should be dismissed as untimely. Because it appears there was some confusion with respect to when petitioner received notice, we will elect to consider this petition on the merits.

^[6] Although petitioner seeks custody of the children, his notice of intent does not list Brenda as a child affected by the orders of the juvenile court. Thus, Brenda is not a subject of petitioners writ petition.