C.M. v. Super. Ct.
Filed 11/7/13
C.M. v. Super. Ct. CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
C.M.,
Petitioner,
v.
THE
SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
SAN
FRANCISCO DEPARTMENT OF HUMAN SERVICES,
Real Party in Interest.
A139365
(San Francisco City & County
Super. Ct. Nos.
JD12-3043, JD12-3043A, JD12-3043B)
Petitioner
C.M. (Father) seeks extraordinary relief
from an order of the San Francisco City and County Superior Court terminating his
reunification services and setting a hearing under Welfare and Institutions
Code
366.26 to select a permanent plan for the minor children, C.M., Ch.M. and G.M. Finding substantial evidence to support the
findings challenged by Father, we shall deny the petition for extraordinary
writ on the merits.
A. Original Petition
On
February 17, 2012, real party in interest San
Francisco Department of Human Services (Agency) filed a section 300
petition alleging Father (aged 42) is father to nine-year-old C.M. (male),
seven-year-old Ch.M. (female), and five-year-old G.M. (female), and the children
come within section 300, subdivisions (b) and (g). The petition alleged as follows: Mother’s whereabouts are unknown. The family has a history of referrals,
including sexual abuse by Father of his stepdaughter, G.S. Upon dismissal of the prior dependencies,
during which Father was found to be the presumed father of C.M., Ch.M. and G.M.,
he was awarded sole physical custody of his three children, as well as his stepdaughter,
G.S. Father has a history of failing to
timely collect the children from their after-school program, sends them to
school appearing unwashed and in dirty, malodorous clothes, and fails to
provide adequate hygiene for C.M., who suffers from enuresis and is frequently
reported as smelling of urine.
The
Agency filed a jurisdiction report with the petition, authored by protective
services worker (PSW) Judy Chu. Chu reported
Father had been negligent in caring for the children, reflected in their chronic
absences from school and their poor grooming and hygiene when they did attend
school, and failed to follow through on recommendations to reduce absenteeism and
for assessments to meet the children’s special needs. When Chu attempted to visit the home, Father
would not let her in. In addition, she
found there was no record of any of the children receiving medical care since
2008.
Chu
opined the children were at risk of emotional damage as the result of Father’s
relationship with their half-sister, his wife’s 19-year-old daughter, G.S. Chu noted Ch.M. had been interviewed by
clinical psychologist Caroline Salvador-Moses and, according to Salvador-Moses,
appeared very uncomfortable when asked about the relationship. Salvador-Moses expressed “ ‘serious
concerns regarding the emotional impact that the inappropriate relationship
between [Father] and [G.S.] is having on the children’ †and opined Ch.M.
is aware there is something not right about the relationship between her older
sister and her father. Salvador-Moses
stated C.M. also showed signs of discomfort when talking about G.S. and Father “ ‘but
was more hesitant to reveal information, most likely for fear of possible
disruption to the family.’ â€
Chu
believed there was a substantial risk the children could be sexually abused
because Father may have sexually abused his stepdaughter G.S. as a child. Chu included copies of numerous referrals
from past years in which there were reports that G.S. was being sexually abused
by Father. Although those referrals were
not sustained, Ch.M. now reported she observed the relationship between Father
and G.S. when G.S. was 17. Also, the
children’s school principal stated she saw Father and G.S. interacting in an inappropriate
manner when G.S. was 16 or 17. When
questioned by another agency social worker, Father denied that he was in a
relationship with G.S.
On
April 2, 2012, the Agency filed a disposition report, authored by PSW Lily Yee. In the disposition report, Yee stated the
current referral was for neglect, and recommended that Father participate in
in-home support services to assist with his parenting skills, participate in a
psychological evaluation, obtain any therapy he needs, and participate in a
substance abuse assessment. Individual
therapy was recommended for each of the children. The case plan recommended Father obtain
appropriate medical and dental care for the children, ensure the children’s regular
school attendance and individual therapy, obtain regional center services for
G.M., ensure the children maintain proper hygiene and dress appropriately, and maintain
a clean and safe home.
PSW
Yee noted that the children were making progress in their school attendance in
the six weeks since referral, but continued to express concerns about the
children’s medical care, and about safety issues presented by having so much
clutter and debris in the house. Further,
because of the alleged sexual relationship between Father and G.S. when she was
a minor, the Agency recommended that all three minor children should engage in “counseling
for further monitoring of the situation and to address other emotional needs that
they may have.â€
After
the jurisdiction/disposition hearing on the original petition was continued,
the Agency filed an amended petition on April 20, 2012. The amended petition alleged counts under
section 300, subdivisions (b), (c), (d), and (g). Under subdivision (b), the Agency alleged Father
needed the Agency’s assistance to ensure the children’s continued school
attendance, compliance with regional center services, and to maintain their
medical, dental, and therapeutic services.
Under subdivision (c), the Agency alleged the children were “at substantial
risk of suffering serious emotional damage as the result of observing the
father’s long-term (and ongoing) inappropriate ‘spousal’ relationship between
the father and their (now) adult 1/2 sibling [G.S.] (father’s step-daughter),
who also resides in the home.†The
Agency alleged under subdivision (d) there was a substantial risk that the
children would “be sexually abused by the father due to numerous past reports
that father began an inappropriate sexual relationship with the children’s
adult 1/2 sibling, [G.S.] (father’s step-daughter), when she was only fourteen
years old.â€
On
June 8, 2012, the Agency filed an addendum report in advance of the contested
hearing on jurisdiction and disposition and attached a copy of Salvador-Moses’s
report prepared in February 2012. The
Agency continued to recommend the children reside in Father’s home while receiving
family maintenance services. Yee had
visited the family home a week earlier and described conditions there as “somewhat
of a mess,†with “crumbs and scraps†on the floor and flies throughout the
house.
The
jurisdiction/disposition hearing on the amended petition was held on June 15,
2012. Father waived his rights and
submitted on the basis of the Agency’s reports.
The dependency court sustained the counts under section 300, subdivisions
(b) and (g), and struck counts alleged pursuant to subdivisions (c) and (d). The court adopted an amended version of the
Agency’s case plan requiring that Father continue to provide the children with
regular medical and dental care, as well as regional center services where
appropriate, ensure the children’s regular and timely attendance at school,
maintain a clean, safe home for the children free of excessive clutter, ensure
the children attend school in clean appropriate clothing, place the children in
individual therapy and ensure their regular attendance, begin a course of
individual therapy, including a psychological evaluation for the purpose of
treatment recommendations, and engage in a course of home parenting classes or
support sessions.
On
November 27, 2012, the Agency filed a status review report authored by assigned
PSW Yisel Ledezma for a status review hearing scheduled for December 13, 2012. The report showed little progress had been
made on the case plan ordered by the court five months earlier. After being referred for in-home services, Father
met the assigned worker but did not maintain contact. On her monthly visits to the family home,
Ledezma had to remind Father to keep the hallways free of clutter and also
noted clutter from the living room was spilling into the dining room. Following the Agency’s referral, Father had
made no arrangements to have his psychological evaluation conducted by Foster
Care Mental Health, nor contacted “A Full Circle†for the children’s therapy.
B. Supplemental Petition
On
December 10, 2012, just a few days before the status review hearing on the
amended petition scheduled for December 13, the Agency filed a supplemental
petition under section 387, seeking detention and out-of-home placement for the
three children. The supplemental
petition alleged Father had been arrested on December 5, 2012, for theft and
for sexual abuse of G.S. when she was a minor, and again alleged that the minor
children were at substantial risk for possible sexual abuse and/or
neglect. The supplemental petition also
alleged the children were at risk of harm because Father failed to maintain a
safe and clean home, failed to “engage and/or complete†his family maintenance
requirements, and is unable to provide proper care, supervision, or shelter for
the children.
A
section 387 interim review report filed on the same day as the supplemental
petition stated all three children had been removed from the home and placed
together in a confidential foster home.
In the report, Ledezma stated she received a telephone call on December
6, 2012, from Detective Cecilia Garay of the Daly City Police Department, informing
her Father and G.S. had been arrested on theft charges. Upon questioning by Detective Garay, G.S.
disclosed she had been sexually abused by Father since the age of 12. When Detective Garay released G.S. and took
her home, she observed the home was filthy and unsafe. G.S. also told Detective Garay that Father
had methamphetamines at the house. Ledezma
also spoke with San Bruno Police Detective Brent Schimeck, who advised Father was
initially arrested for theft, and after G.S.’s disclosures of sexual abuse, he was
rearrested on sexual abuse charges, and was being held in San Mateo County jail.
The
section 387 interim review report further related that Ledezma learned the
children had been absent for the last two days with head lice, a chronic
problem for this family according to school authorities. Ledezma, accompanied by a colleague, went to
the home, where they found the children in G.S.’s care, and removed them for
placement into foster care. Ledezma and
her supervisor then met with Father and G.S. separately on December 10,
2012. Both denied that a sexual relationship
began before G.S. was 18 years old. G.S.
stated that she and Father are “a couple,†claiming she had fabricated her
story of sexual abuse for the detective.
Regarding
Father’s compliance with the existing case plan, Ledezma noted Ch.M. told her
the house is cleaned only if Ledezma is expected to visit. Ledezma also reported that Epiphany In Home Services
terminated parenting services to Father on November 20, 2012, after he failed
to communicate with the case worker. Father
had been referred to Foster Care Mental Health for an evaluation and was
assigned to a psychologist, who reported she had left several messages for Father,
but he had not contacted her. At a
hearing held on December 11, 2012, the court found the Agency made a prima
facie case there was a substantial danger to the children’s physical health or
that they were suffering severe emotional damage, issued an order of detention,
and set the matter for a contested
detention hearing.
In
an addendum report filed on December 13, 2012, Ledezma stated each of the
children had a CASARC (Children and Adolescent Sexual Abuse Resource Center) interview
on December 11, 2012, did not disclose any sexual abuse by Father, but appeared
anxious and uncomfortable when questioned about Father and G.S. Ch.M. told the interviewer Father slept in a
chair in G.S.’s room. Ch.M. also said
her younger sister G.M. might “make a mistake†and say Father and G.S. slept in
the same bed. According to Ch.M., G.M.
had said this before and had been spanked for it. Upon further questioning regarding physical
discipline by Father, all three children disclosed Father used a paddle to
spank them on the bottom. Ledezma also
related she obtained a copy of the police report, which she attached to the addendum
report, documenting G.S.’s disclosure that Father had been having intercourse
with her since age 12. San Bruno police
had sought and obtained an emergency protective order prohibiting Father from
living in the family home.
A
team decisionmaking meeting was held on December 12, 2012, attended by G.S. and
Father’s mother (paternal grandmother).
Father was at home and out of custody on bail, but did not attend the
meeting. It was determined the children should
remain in foster care with a recommendation they receive therapeutic visitation. Ledezma’s assessment was that Father’s
relationship with G.S. had created anxiety for the children and they were in a
situation where they had to lie about the relationship or risk physical
punishment by Father if they told the truth. At the contested detention hearing held on
December 13, 2012, the children were ordered detained and placed in foster care
and the matter was set for a jurisdiction hearing on the supplemental petition.
On
January 29, 2013, the Agency filed an amended supplemental petition adding two
counts. Count S-7 alleged: “The children are at substantial risk of
suffering serious emotional damage as the result of observing the father’s
long-term (and ongoing) inappropriate ‘spousal’ relationship between the father
and their (now) adult half-sibling, [G.S.] (father’s step-daughter), who also
resides in the home.†Count S-8 alleged:
“The father began engaging in unlawful
sexual intercourse with his (now adult) step-daughter, [G.S.], when she was a
minor. Per [G.S.]’s own admission, the
father began grooming her for sex when she was approximately twelve years old. The children are at substantial risk of sexual
abuse by their father due to father’s sexual abuse of his step-daughter (the
children’s half-sibling) when she was a minor.â€
A
contested hearing on the amended supplemental petition was held on April 4 and
5, 2013.
Detective Cecilia Garay, G.S., and the paternal grandmother. Ledezma testified the young children were
experiencing anxiety as a result of the relationship between Father and G.S.,
based on information she had in the file and her conversations with school
personnel. Moreover, Ledezma was told Father
had made statements Ch.M. and G.M. are not his biological children, raising
concerns he would groom them for sexual abuse as he did with their older half-sister.
Ledezma believed the relationship
between Father and G.S. has caused emotional harm to C.M.; for example, the
foster mother reported C.M. urinated on the bed after phone calls with Father. On cross-examination, Ledezma testified as to
what had changed to prompt the supplemental petition, stating that Father did
not comply with the parenting program, the house continued to be chaotic and
was more cluttered, the children continued to have head lice, the children’s
medical needs were not met, and new information came out confirming the
suspected sexual abuse. Regarding future
services, Father was asked to have individual therapy and a psychological
evaluation, and the Agency had requested an individual therapist for Father who
specialized in working with perpetrators of sexual abuse.
Detective
Garay testified about her interview with G.S.
After G.S. was arrested, police searched her cell phone and found a
photograph depicting sexual activity between G.S. and Father. When asked about this image, G.S. described Father
variously as her stepfather and her boyfriend.
G.S. told the detective that Father came into her life when she was
eight, and that the sexual abuse began by the time she was 12. Father began by playing a game that led to
him exposing himself to G.S., followed by showing her pornography, which then
led to escalating sexual abuse. When
G.S. was 14 years old, Father became jealous because she had a boyfriend; at
that time he was having sexual relations with G.S. as well as G.S.’s
mother. After G.S.’s mother left, Father
and G.S. continued their relationship. Detective
Garay testified G.S.’s statements were not coerced, were not given in return
for any promises, and appeared to be honest. When Detective Garay went to the family’s
house later in the day, she did not feel it was fit for children and contacted
the Agency the next day to voice her concerns. Detective Garay had prepared an audio
recording of her interview with G.S., in which the girl discussed the sexual abuse
by Father when she was 12 years old. The
court admitted the recording into evidence during Detective Garay’s testimony
and listened to the relevant portions during a break on the second day of the
hearing.
Father
called G.S., who testified she lied to Detective Garay and that she does not
consider Father to be her stepfather “[b]ecause we have always had this strong
bond. And it grew past the
stepfather-stepdaughter relationship.â€
She testified a sexual relationship with Father began when she was 18 years
old. She also testified she has a
sibling relationship with the three minors and that they are all “very close as
friends and siblings.†G.S. testified
she told detectives there was methamphetamine in the home because she mistook
sea salt for methamphetamine.
After
closing argument, the court sustained all of the allegations of the supplemental
petition except for count S-2, which alleged Father had substance abuse
issues. The court determined there was
substantial evidence Father sexually abused G.S. when she was a minor and
maintained a dysfunctional relationship with G.S. taking advantage of her young
age, her vulnerability and feelings of abandonment. Additionally, the court was concerned about
the physical and emotional safety of the three minor children, in particular,
Ch.M. and G.M., who Father believed may not be his biological children,
potentially exposing them to a substantial risk of sexual abuse by Father. The court noted all three children feel they
have to lie to protect the two persons they love or face punishment for telling
the truth.
The
court ordered that dependency status be renewed and that the children be
removed from the home and placed in foster care. The court also ordered that services continue
to be provided to Father. The court
scheduled six- and 12-month review hearings, and reduced Father’s visitation
from twice a week to once a week.
name="_ftnref3" title="">[3]
Section 366.26 Hearing
On
June 13, 2013, the Agency filed a form JV-180 request, asking that Father’s
visitation be suspended on the grounds he had missed four out of seven visits
since the April 5 hearing, and had shown up more than 20 minutes late for the
remaining three. Father opposed the
request, contending reports for visits prior to the April 5 hearing had been
positive, and that he had excuses for each of the visits since the hearing he
missed or for which he was late. The
matter was set for a contested hearing on July 23, 2013.
On
June 28, 2013, the children’s counsel filed a form JV-180 request to terminate
reunification services, on the grounds Father had failed to engage in any of
the mandated reunification services in the 12 weeks since the April 5
hearing. Counsel’s request was also set
for hearing on July 23, 2013.
On
July 22, 2013, the Agency filed an addendum report in advance of the July 23
hearing. In the report, Ledezma noted Father
had missed two more visits since she submitted the form JV-180 request, and had
shown up 10 to 20 minutes late for the others.
Ledezma noted Father had not engaged in any of the reunification
services. Specifically, Father did not
complete the psychological evaluation, had not started individual therapy, did
not follow up on the referral for a substance abuse assessment, and failed to
make an appointment for drug testing.
Also, Father had been in unauthorized and unsupervised contact with C.M.
through Facebook, text messaging, instant messaging, and photo stream, and this
contact was affecting C.M. negatively.
On
July 23 and 24, 2013, the court held a hearing on the Agency’s request to
suspend visitation and the children’s request to terminate services. Ledezma testified she referred Father to a
psychologist for the psychological evaluation and provided the psychologist
with all of the court records, but Father failed to obtain the evaluation. The psychologist attempted to call Father
several times after the April 5, 2013 hearing, but Father did not return her
calls or meet with her. Ledezma also
referred Father to individual counseling concerning sexual abuse. According to Ledezma, Father did not contact
the therapy center until July 19, 2013, just before the hearing on the request
to terminate services and six months after the referral was made. Also, Father was uncooperative and refused to
sign off on the case plan. In this
regard, Ledezma attempted a home visit but no one answered the door, and she
made “numerous†phone calls but never received a single call back.
Regarding
visitation, Ledezma testified Father had missed five out of eight visits in
April and May 2013, and was substantially late for the remaining three. Since mid-June, Father missed two out of six
visits, and was at least 10 minutes late for the remaining four. At no time since the April 5 court hearing had
Father called to schedule a make-up visit.
The
only other witness at the hearing was Father.
With regard to the incomplete psychological evaluation, Father testified
he had begun the process before the April 5 hearing, although he admitted that
he did not follow through afterwards. He
testified that after the hearing he felt like he had lost his kids, so “there
was no point.†Father admitted he had
received a letter from the Agency with his referral for drug testing and
therapy, yet failed to explain why he ignored the referrals. Father testified that at one point he thought
he was looking at a lengthy prison sentence after the San Mateo arrest; as a
result he felt there was no reason to engage in reunification services.
As
to visitation, Father stated his former counsel told him visitation had been
terminated after the April 5 hearing and he did not learn visitation was still
in place until his mother told him. Father
explained he missed one visit because he thought visitation was cancelled, one
because he was “still in a state of shock,†and the rest because he had court
dates. Father admitted that he was often
late to the visits, but explained that he is habitually late by nature. Father denied he received any telephone calls
from Ledezma or that she came by the house to visit him. Father testified that he currently has a
sexual relationship with G.S., but denied that he had sexually abused her when
she was a minor. Father expressed that
he, G.S. and the children are family, and he loves them, while acknowledging actions
speak louder than words and his actions have not been very believable. He admitted his actions “have shown that I am
not capable of completing my reunification orders.â€
Following
argument of counsel, the court ruled Father had not demonstrated a commitment
for reunification with the children and the “impetus for the removal†was Father’s
conduct with G.S., which the court believed caused emotional distress for the
children. The court found Father was in
“serious denial of the harm†he has caused his family, and had not demonstrated
that he was willing to make any changes in his behavior. The court concluded Father deliberately
rejected all services ordered by the court, and the best interests of the
children would not be served “by a parent who chooses to do what is best for
himself and refuses to do what is best for his own children.â€
The
court found by clear and convincing evidence that Father had failed to
participate in any court-ordered treatment program, and there was no
substantial probability the children could be returned within the next six
months. The court found reasonable
services had been provided, there was good cause to terminate reunification
services, and set a selection and implementation hearing pursuant to section
366.26 for November 18, 2013. On July
24, 2013, Father filed a timely notice of intent to file a writ petition.
A. Reasonable Services Were Provided
“ ‘[O]ur sole task on review is to
determine whether the record discloses substantial evidence which supports the
juvenile court’s finding that reasonable services were provided or offered.’ †(In re
Julie M. (1999) 69 Cal.App.4th 41, 46.)
“In making this determination, we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and
credibility are questions for the trier of fact,†and that as a reviewing court
we “may not reweigh the evidence when assessing the sufficiency of the
evidence.†(In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
“Services
will be found reasonable if the Department has ‘identified the problems leading
to the loss of custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the course of the service
plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult . . . .’ †(In re
Alvin R. (2003) 108 Cal.App.4th 962, 972–973.) Services, however, will rarely be perfect;
accordingly, “ ‘[t]he standard is not whether the services provided were
the best that might be provided in an ideal world, but whether the services
were reasonable under the circumstances.’ †(Melinda
K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1159.)
Father
contends the reunification services provided to him were inadequate because he
“was not offered reasonable services to address ‘the fundamental problem that
led to the children’s detention,’ †namely his ongoing “spousal†relationship
with his stepdaughter. In this regard, Father
does not specify the nature of the services he asserts the Agency failed to
provide. Rather, he asserts that after
the April 2013 disposition hearing on the supplemental petition, the court did not
specify what additional reunification services should be provided to supplement
those already in place under the case plan.
Viewed
under the substantial evidence standard, Father’s characterization of the
record on this point is not persuasive. First,
at the conclusion of the contested disposition hearing, the court ordered
“services continue to be provided to the parent as previously ordered†and gave
the Agency discretion “to determine what kind of reunification services [are]
to be provided†in addition to those previously ordered. Thereafter, at the July hearing on minors’
motion to terminate services, Ledezma testified that among the services
initially ordered, Father had to undergo a psychological evaluation and follow
the recommendations of the forensic psychologist who conducted the
evaluation. To this end, Ledezma
referred Father to Foster Care Mental Health and, in October 2012, informed Father
he had been assigned to Dr. Katya Cornejo for evaluation and provided him with
the doctor’s contact information. Father
did not contact Dr. Cornejo until after January 2013. Ledezma testified the court’s finding at the
April 5 disposition hearing of sexual abuse by Father against G.S., and its
order services were to be continued, meant Father required further
psychological evaluation as well as individual therapy to address the issue of
sexual abuse.
As
to Father’s psychological evaluation, Ledezma did not have to re-refer Father
to Dr. Cornejo because the doctor’s evaluation was still ongoing due to Father’s
lack of timely engagement and participation.
Dr. Cornejo was prepared to conduct the psychological evaluation in
relation to the finding of sexual abuse but was unable to engage with
Father. In fact, she called Father on
several occasions after the April hearing but Father did not return her calls
and failed to attend any session that had been scheduled. Ledezma testified that in December 2012, she
referred Father to Foster Care Mental Heath, who in turn referred Father to the
OMI Family Research Center (OMI). Father
did not, however, go to OMI to do an intake until July 19, 2013, only four
days before the July 23 hearing on the motion to terminate services.
In
sum, viewing the evidence in a light most favorable to the Agency and indulging
all legitimate and reasonable inferences to uphold the court’s finding (
538, 545), we conclude the record evidence adduced above constitutes
substantial evidence to support the court’s finding that reasonable services were
provided. The record further
demonstrates Father simply failed to “communicate with the [Agency] and
participate in the reunification process†(In
re Raymond R. (1994) 26 Cal.App.4th 436, 441) by availing himself fully of
the services provided by the Agency. (See
In re Michael S. (1987) 188
Cal.App.3d 1448, 1463, fn. 5 [Agency’s duty to provide reasonable services does
not require “a social worker take the parent by the hand and escort him or her
to and through classes or counseling sessions. A parent whose children have been adjudged
dependents of the juvenile court is on notice of the conduct requiring such
state intervention. If such a parent in
no way seeks to correct his or her own behavior or waits until the impetus of
an impending court hearing to attempt to do so, the legislative purpose of
providing safe and stable environments for children is not served by forcing
the juvenile court to go ‘on hold’ while the parent makes another stab at
compliance.â€].)
B. Likelihood of Reunification
In pertinent part, section 388
provides: “Any party, including a child
who is a dependent of the juvenile court, may petition the court . . .
to terminate court-ordered reunification services . . . [¶]
. . . [¶] [if the] action or inaction of the parent or guardian
creates a substantial likelihood that reunification will not occur, including,
but not limited to, the parent’s or guardian’s failure to visit the child, or
the failure of the parent or guardian to participate regularly and make
substantive progress in a court-ordered treatment plan.†(§ 388, subd. (c)(1)(B).)
The
dependency court’s ruling on a section 388 petition is reviewed for abuse of
discretion. (See In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) “In exercising its discretion, the court has
‘the ability to evaluate whether the parent will utilize additional services
and whether those services would ultimately inure to the benefit of the minor.’
[Citation.] We will not disturb the court’s determination
unless the court has exceeded the limits of legal discretion by making an
arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be
deduced from the facts, we have no authority to reweigh the evidence or
substitute our judgment for that of the juvenile court.†(Ibid.)
Father
contends the trial court abused its discretion by finding there was a
substantial likelihood reunification would not occur because he had taken some
action toward completing the case plan and could have completed it before the
six-month review hearing scheduled for October 2013. However, as noted above, Father’s
participation in the services offered by the Agency was partial and untimely at
best, and he made no progress towards alleviating or mitigating the causes for the
children’s removal from his custody. Significantly,
Father failed to complete the psychological evaluation ordered by the court,
failed to initiate individual counseling
to address the issue of his sexual abuse of his stepdaughter, did not follow up
on the referral for a substance abuse assessment, and failed to make an appointment
for drug testing. Father continued the
“spousal†relationship with his stepdaughter despite evidence of the emotional
and psychological damage of this relationship on the children. Father missed the majority of the visitations
arranged with the children, was habitually and excessively late for those he
did attend, and his unauthorized and unsupervised contact with C.M. through social
media affected C.M. negatively. Indeed, Father
acknowledged in court that his own actions demonstrated he was incapable “of
completing my reunification orders.†In
sum, we conclude the trial court did not abuse its discretion by finding Father’s
“action or inaction . . . create[d] a substantial likelihood that
reunification will not occur.â€
name="_ftnref4" title="">[4] (§ 388, subd. (c)(1)(B).)
The
petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14;
894.) The decision is final in this
court immediately. (See Cal. Rules of
Ct., rule 8.490(b)(3).)
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1] All statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Real party in interest’s motion to augment
the record on appeal to include the reporter’s transcript of the hearings held
on April 4 and 5, 2013, filed on September 9, 2013, is hereby granted.
