In re J.M.
Filed 11/19/13 In re J.M. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
3
In re J.M.,
a Person Coming Under the Juvenile Court Law.
Contra Costa County
Children & Family Services Bureau,
Plaintiff and Respondent,
v.
D.M.,
Defendant and Appellant.
A137489
(Contra
Costa County
Super. Ct.
No. J1100742)
D.M. (Father) appeals from an order terminating his
parental rights to his daughter, J.M.,
pursuant to Welfare and Institutions Code section 366.26.
findings of detriment to J.M.'s well-being made at earlier status review
hearings, and are therefore not subject to review on appeal from the section
366.26 order. In any event, the orders
Father challenges are constitutionally sound and supported by
J.M. was born in May 2011 and detained by the
County Children
and Family Services Bureau
(Family Services, or the Bureau) based on information that both parents were
homeless, J.M.’s mother (Mother) suffered from chronic and severe mental
illness, and the parents lacked the means, judgment, and parenting skills to
safely care for an infant.
name="_ftnref2" title="">[2] At the time of J.M.’s birth, Father was in
violation of probation related to his conviction for
was arrested. The juvenile court found
there were no reasonable means to protect J.M.’s emotional or physical health
without removing her from her parents’ custody, and ordered her detained. On June 8, the court sustained a
jurisdictional allegation that J.M. was at substantial risk in Mother’s care
“in that the mother has a diagnosed psychiatric condition that prevents [her]
from providing adequate care for the child.â€
|
The
disposition hearing was held on September 9. Father had an arrest history dating from 1987
and convictions for armed robbery with a firearm and malicious mischief
vandalism. He anticipated being released
from jail on January
1, 2012. Prior
to his incarceration Father had been staying with a relative and in a shelter
Family Services’s
disposition report questioned Father’s ability to safely care for J.M. because
his judgment was in question, he was “fleeing from the law on an outstanding
warrant,†and he did not understand Mother’s psychiatric condition and how it trammeled
her ability to care for the baby. The
case worker reported that both parents “will need to make considerable strides
in being able to appropriately attend to their own daily needs, address mental
illness, substance abuse and the propensity for breaking the law, before they
will be in a position to try to meet the needs of their child. Whether or not this will be accomplished will
depend on their continued commitment and follow through with the elements of
their respective case plans.â€
The Bureau recommended
parents. Father’s case plan included
supervised visits, participation in an anger management program, counseling,
and education in parental skills. He was
also required to stay sober and drug-free, comply with all required drug tests,
demonstrate an understanding of age-appropriate behavior for J.M., obtain and
maintain stable housing, and keep the case worker apprised of his address and
phone number.
Father attended the dispositional hearing with counsel
and submitted on the disposition report.
The court adopted the Bureau’s recommendations and found by clear and
convincing evidence that “there is a substantial danger to the physical health,
safety, protection or physical or emotional well-being of the child or would be
if the child were returned home and that there are no reasonable means by which
the child’s physical health can be protected without removing the child from
mother’s and father’s physical custody.â€
The court also found by clear and convincing evidence that placing J.M.
with her father would be detrimental to her safety, protection, or physical or
emotional well-being.
The six-month status review hearing originally scheduled
for February 24, 2012 was continued to April 18 for a contested hearing. Father had been released on probation in
early January. The Bureau’s report for
the February 24 hearing recommended that the court terminate reunification
services, find visitation was detrimental to J.M. and terminate it, and set a
section 366.26 hearing. Father had missed
a scheduled visit on January 31, drug tests on January 26 and January 31, and a
parenting class on January 31. He had
also failed to provide the Bureau documents verifying his participation in
services and the conditions of his probation.
Visitation was going poorly. J.M. cried throughout the one visit Father
attended despite his attempts to engage with and soothe her. He told J.M.’s foster mother he had no
questions about J.M. “as he knows everything about her already and that he has
three other children.†J.M. also displayed
substantial distress during visits with Mother, although she was otherwise thriving
in her foster home, developing appropriately, and appeared to be a happy and
socially well-adjusted baby.
The Bureau’s addendum report for the April 18 hearing said
Father reported he was actively participating in all recommended services,
including parental skills classes, anger management, and individual
therapy. But by then he had missed eight
random drug tests and a February 29 visit with J.M. was cancelled because
Father was 90 minutes late. He attended
three visits in March and April, but J.M. cried and was in constant distress
throughout each visit. Father “is unable
to soothe [J.M.] and she remains unresponsive to his attempts to soothe
her. [J.M.] uses her hands to make a
fist and physically pushes her father away.
Her cries are earsplitting and sound like she is in distress. A number of staff at the Ellinwood CFS office
have interrupted the visits to inquire if they could assist in anyway [sic].†On a visit in March, a Family Services
supervisor whose office was next to the visitation room called to report that
J.M. was “ ‘crying excessively and
. . . hysterical. These visits are
causing more harm to this child.’
â€
At the time, Mother was
being treated for schizoaffective disorder, bipolar disorder, post traumatic
stress disorder and chronic amphetamine use.
But Father repeatedly denied she had any mental health issues. His plan was that Mother would care for J.M.
while he worked full-time to support them.
After a period of transition, on April 15 J.M. was placed with a fost/adopt mother and
was continuing to thrive. Family
Services continued to recommend termination of visitation and reunification
services and that a section 366.26 hearing be set.
The contested six-month review was held on April 18 and
19. Father’s weekly parenting class instructor
testified he had missed only one class since he started on January 24, participated
actively in the classes, and “has learned some.
He still has a ways to go, but he has stated that he’s learned and is
applying the knowledge from the class.†Nonetheless,
the instructor was concerned that Father lacked the cognitive ability to learn
from the information provided in the classes. She opined that Father was not ready to parent
a one-year-old and would not acquire sufficient parenting skills to do so
within three months.
When the hearing resumed
the next day, the parties informed the court they had reached a resolution in
regard to Father. Family Services agreed
to continue providing him with reunification services until the twelve-month
review and to investigate training in parental skills that included hands-on parent-child
interaction. Father acknowledged that
Family Services had provided reasonable services during the preceding period.
The court cautioned Father
to comply with drug testing, stop lying to the social worker, and improve his
interaction with J.M. Mother’s reunification
services and visitation were terminated and the court set a twelve-month review
date for Father for June 6, 2012. Father’s
attorney approved and signed off on the Order After Hearing, which included
findings by clear and convincing evidence that returning J.M. to her parents’
custody would create a substantial risk of detriment to her safety, protection
or physical or emotional well-being, and that Father had made minimal progress
toward alleviating the causes for J.M.’s placement.
The Bureau filed reports for the twelve-month review on
June 5 and July 11. It again recommended
that Father’s services and visitation be terminated and a section 366.26 be hearing
set. Father had missed one therapeutic
assessment with J.M. in May, without explanation, but had attended seven others. During these sessions J.M. was hypervigilant with
Father and would cry, whimper, and try to avoid contact with him. Father tested positive for marijuana four
times and negative for illegal substances and alcohol once since the last
hearing. He had not responded to Family
Services since May 22 and told his parenting teacher that he was no longer
communicating with his case worker. The Bureau
concluded that “[b]ased on [Father's] lack of progress, unwillingness to
cooperate with the Bureau, positive drug tests, inability to form and/or
maintain a relationship, inability to comfort and soothe [J.M.], inability to
recognize, understand, and meet [J.M.’s] needs, and his continued inconsistent
participation in visits the Bureau cannot state that [J.M.] would be safe in
his care or that there is a substantial probability of return if services were
continued.†On June 6, the court
declined to suspend visitation but ordered Father to drug test prior to each
visit and warned him that a positive test would result in a cancelled visit.
The contested hearing was held on July 11. Father had tested negative for illegal
substances since May 29, but had not enrolled in residential substance abuse
treatment. He denied having any issues
with drugs and demonstrated no insight into the effect of his drug use on his ability
to take care of J.M. He had no source of income and had been evasive with the
Bureau about his address and living situation.
On June 14, after discovering that Father’s phone was disconnected,
Father’s case worker learned through a paternal aunt that he was living with Mother.
J.M. continued to
demonstrate extreme distress during her weekly visits with Father. On July 7, the therapist reported that “it
does not appear that [J.M.’s] hypervigilance around [Father] has decreased even
though they have been together once a week for three weeks in a row. I do not see an attachment bond between them,
nor do I see an attachment bond emerging.
If anything, [J.M.’s] rejection of [Father] was the same as in the
initial session when I saw them together for the first time. It also appears that . . . [Father] does not
retain instruction. Based on this
observation, it does not appear he is teachable.†Family Services continued to recommend that
the court terminate visitation and reunification services and set a section
366.26 hearing.
At the hearing on July 11, Father submitted as an offer
of proof a statement that he formerly smoked marijuana to treat a medical
condition, but no longer did so; that he hoped to live as a family with Mother
and J.M. in the future; and that he understood Mother has mental health issues
and would not allow contact between her and J.M. if the court so ordered. The court accepted the offer of proof but did
not find Father’s statements about Mother to be credible. The court found no substantial likelihood J.M.
would be returned to Father within six months. By clear and convincing evidence,
the court concluded that returning J.M. to either parent’s custody would create
a substantial risk of detriment to her safety, protection, or physical or
emotional well-being. The court
terminated father’s family reunification services and visitation, set a section
366.26 hearing for November 9, and advised Father orally and in writing of his
right to seek writ review of the order.
On August 17, Father’s attorney notified this court that
he had found no arguable cause to file a writ petition. On November 9, the court found by clear and
convincing evidence that J.M. was likely to be adopted and terminated both
parents’ parental rights. Father
appealed.
DISCUSSION
The main thrust of Father’s
argument, as we understand it, is that the juvenile court violated due process
by terminating his parental rights without making a finding that he was an
unfit parent. On closer inspection, he
seems to be arguing that the evidence was insufficient to establish his
parental unfitness or, as the issue is framed in California, that placing J.M.
in his custody would be detrimental to her.
Neither assertion has merit.
I.
Father’s Contentions Are Not Properly Before
This Court
Whether framed as an issue of due process or sufficiency
of the evidence, Father’s arguments are aimed at the findings of detriment made
at the six and twelve-month review hearings.
As such, they are not properly before this court on appeal from the
order terminating his parental rights. “Subdivision (l)(1) of section 366.26 provides that an order setting a section
366.26 hearing is not ‘appealable at anytime unless’ specified steps are timely
taken to secure review by extraordinary writ.
In order to obtain review on appeal from the final order in the section
366.26 hearing of issues subsumed within an order setting a section 366.26
hearing, a party must first timely file a writ petition seeking review of the
order setting the section 366.26 hearing; the petition must substantively
address the specific issues to be challenged; the petition must be supported by
an adequate record; and finally, the petition must have been ‘summarily denied
or otherwise not decided on the merits.’ (§ 366.26, subd. (l)(1)(C).)†(
Cal.App.4th 1501, 1507.) These
requirements are not met here because Father’s attorney determined there were
no viable grounds for a writ petition to challenge the order setting the
section 366.26 hearing. Nor is the
detriment finding made at the 6-month review subject to challenge through this
appeal. “ ‘A challenge to the most
recent order entered in a dependency matter may not challenge prior orders for
which the statutory time for filing an appeal has passed.’ †(In re
Jesse W. (2001) 93 Cal.App.4th 349, 355.)
Courts will disregard a waiver if
198, 208; see also In re Meranda P. (1997)
a consideration arises only where the alleged error “fundamentally undermined
the statutory scheme so that the parent would have been kept from availing
himself or herself of the protections afforded by the scheme as a whole.†(In re
Janee J., supra, at p. 208.) Because
of the significant safeguards built into this state’s dependency statutes, “in
the usual case, application of the waiver rule will not offend due
process.†(Ibid.) That is the case
here. Father was offered
reasonable reunification services and was represented by counsel at all relevant
times. He was advised of his writ
obligation, both orally by the trial court and in writing, when the court
terminated his visitation and reunification services and set the section 366.26
hearing. Therefore, due process was
satisfied and Father is not entitled to a waiver of the rule against untimely appellate
review in dependency actions.
We
therefore cannot review the “parental unfitness†findings.
what happened here, we nonetheless explain that Father’s contentions would not
have prevailed had they been raised in a timely fashion.
To
the extent Father claims a due process violation, it is long settled that
California’s dependency system “ ‘comports with Santosky's[
because, by the time parental rights are terminated at a section 366.26
hearing, the juvenile court must have made prior findings that the
parent was unfit. [Citation.] “The number and quality of the judicial
findings that are necessary preconditions to termination convey very powerfully
to the fact finder the subjective certainty about parental unfitness and
detriment required before the court may even consider ending the relationship
between natural parent and child.â€
[Citation.] The linchpin to the
constitutionality of the section 366.26 hearing is that prior determinations
ensure “the evidence of detriment is already so clear and convincing that more
cannot be required without prejudice to the interests of the adoptable child,
with which the state must align itself.†’ â€
(In re P.A. (2007) 155
Cal.App.4th 1197, 1211.)
Here,
the juvenile court’s findings of detriment are supported by sufficient evidence. “We review the record in the light most
favorable to the court’s order to determine whether there is substantial
evidence from which a reasonable trier of fact could find clear and convincing
evidence that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no substantial
doubt.†(In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Without belaboring the evidence discussed in
the background section of our opinion, there was ample evidence that Father planned
for Mother to take care of J.M. despite her severe mental illness that rendered
her incapable of doing so, and that he lied to Family Services about his plans. Despite repeated hands-on parenting
instruction, Father appeared incapable of learning to properly interact with
J.M. He also failed repeatedly to
cooperate with the Bureau and keep it apprised of where and with whom he was
living. Under these circumstances, the
dangers inherent in entrusting J.M. to his custody are plain. Beyond these problems, which weighed heavily
with the juvenile court, Father also had multiple missed or positive drug
tests, failed to participate in a residential drug treatment program as advised
by Family Services, and had no apparent prospect of obtaining a suitable and
stable home for J.M. All of this,
considered together with J.M.’s extreme and undiminishing distress during visits,
supports the court’s determination.
The order
terminating Father’s parental rights is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness,
P.J.
_________________________
Pollak, J.
name="_ftn1" title="">[1] Further statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Because this appeal
concerns only Father’s parental rights, we will omit discussion of facts that
are relevant only to Mother.
