Filed 7/3/17 Jose V. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOSE V.,

Petitioner,

v.

THE SUPERIOR COURT OF MERCED COUNTY,

Respondent;

MERCED COUNTY HUMAN SERVICES AGENCY,

Real Party in Interest.

F075444

(Super. Ct. No. JP001150B)


OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald J. Proietti, Judge.
Jose V., in pro. per., for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and Claire S. Lai, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Jose V. (father), in propria persona, seeks extraordinary writ review (Cal. Rules of Court, rules 8.450-8.452) of the juvenile court’s orders terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his now two-year-old son, Evan. Father contends the juvenile court’s ruling is error because he fully complied with his reunification plan. We deny the petition.
PROCEDURAL BACKGROUND AND PROCEDURE
In October 2014, the Merced County Human Services Agency (agency) was notified that Denise, Evan’s mother and a chronic methamphetamine user, gave birth to Evan and that she and Evan tested positive for methamphetamine. Father was also a chronic substance abuser with multiple arrests for driving under the influence of alcohol or drugs. He was on felony probation and there was a restraining order prohibiting him from having contact with Denise. The agency took Evan into protective custody and placed him in foster care.
In December 2014, the juvenile court exercised its dependency jurisdiction, ordered Evan removed from parental custody, ordered the agency to provide the parents reunification services and set the six-month review hearing for June 2015. Father’s services plan required him to participate in domestic violence, parenting and substance abuse services.
By the six-month review hearing, Evan was living with his maternal aunt and the parents were living together in the home of the paternal grandmother. Father was incarcerated from January 8 through April 2, 2015, and neither parent participated in the court-ordered services. The agency recommended the juvenile court find there was not a substantial probability Evan would be returned to parental custody by the six-month review hearing and terminate reunification services.
The six-month review hearing was continued and conducted in September 2015. Denise did not appear and her attorney was unable to reach her by phone. The juvenile court terminated Denise’s reunification services but continued services for father and ordered him to participate in the Dependency Drug Court Treatment Program (drug court program). The court set the 12-month review hearing for March 2016.
In its report for the 12-month review hearing, the agency recommended the juvenile court terminate father’s reunification services. Though he completed a parenting class and regularly visited Evan, he was not participating in domestic violence services and was only partially compliant with the drug court program. According to a progress report prepared in April 2016, father had improved “immensely” with time management skills and was making positive progress toward goals and opening up more in his individual sessions. However, he tested positive for methamphetamine in January and March 2016.
The agency opined that it would be detrimental to return Evan to father’s custody and that there was not a substantial probability Evan could be returned if father were provided more time to reunify. The agency based its opinion on father’s continued drug use, failure to complete an anger management/domestic violence assessment and his continued contact with Denise.
The juvenile court continued the hearing until September 2016, and set it as a contested matter at the request of father’s attorney. Meanwhile, the agency in an addendum report changed its recommendation and advised the court that it would be in Evan’s best interest to continue reunification efforts because father maintained a close relationship with Evan, was more fully engaged in the drug court program and refrained from associating with drug users, including Denise. He also completed an anger management/domestic violence assessment and was advised to attend at least 16 anger management sessions.
In September 2016, at the 12-month review hearing, the juvenile court continued father’s reunification services and set the 18-month review hearing in October 2016.
In its report for the October 2016 hearing, which the agency characterized as the 24-month review hearing, the agency recommended the juvenile court terminate father’s reunification services. Father was meeting all his drug court treatment goals and program requirements and was participating well in groups but after a year in the program, he continued to test positive for methamphetamine. He also continued to associate with Denise. The agency believed he had a codependent relationship with her because he also lied about where he was living. The agency further reported that Evan remained in the home of his maternal aunt.
In an addendum report filed in February 2017, the agency reported that father submitted to a hair follicle analysis in January 2017, conducted by a different lab, and tested positive for methamphetamine. In addition, his progress in the anger management program was reportedly unsatisfactory and his likelihood to commit further abuse or violence was moderate to high.
On April 4, 2017, the juvenile court conducted a contested hearing. The court noted they were “well beyond” 24 months from the date Evan was initially removed from parental custody and were actually conducting a 30-month review. Social worker Bert Navarro testified that father completed the anger management program and was in compliance with the drug court program. However, the agency remained concerned about his drug use.
Father testified he last used drugs, methamphetamine and marijuana, two and a half years before but had not used since Evan was born. He could not explain why his hair follicle analysis yielded a positive result for methamphetamine. He had not seen or heard from Denise since October 2016.
The juvenile court found it would be detrimental to return Evan to father’s custody and the agency provided him reasonable reunification services. The court terminated reunification efforts and set a section 366.26 hearing for July 27, 2017.
DISCUSSION
Father contends the juvenile court erred in terminating his reunification services because he completed his case plan. He disputes the positive hair follicle analyses, in essence claiming they were false positives. He seeks a writ of mandate directing the juvenile court to vacate the section 366.26 hearing and return Evan to his custody.
When the juvenile court removes a child from parental custody, it is generally required to order child welfare services to assist in reunifying the family. (§ 361.5,
subd. (a).) Although the goal of reunification services is to reunite children with their parents whenever possible, reunification must be accomplished within 18 months from the time the child was originally taken from his or her parents’ custody, absent circumstances not present here. (§ 361.5, subd. (a)(3).)
As long as the juvenile court provides reunification services, it must review the case at least once every six months. (§ 366, subd. (a)(1).) At each review hearing, there is a statutory presumption that the court will return the child to parental custody unless the court finds by a preponderance of the evidence that the child’s return would expose the child to a substantial risk of detriment. (§§ 366.21, subds. (e)(1) & (f)(1), 366.22, subd. (a)(1).) If the court determines the “ ‘child may not safely be returned to the parents within a maximum of 18 months from removal,’ the court must terminate reunification efforts and set a section 366.26 selection and implementation hearing.” (In re Zacharia D. (1993) 6 Cal.4th 435, 447.)
In this case, father had received 30 months of reunification services when the juvenile court conducted the review hearing in April 2017. Consequently, under the law, the court had only two choices—return Evan to father’s custody or set a section 366.26 hearing. The court determined it could not safely return Evan to father because it would expose him to substantial detriment for a variety of reasons, including father’s continued methamphetamine use and contact with Denise. The evidence supported the court’s detriment finding.
Regarding father’s challenge to the positive hair follicle analyses, he points out that he drug tested for the drug court and the results were negative. The record reflects, however, the drug court tested urine not hair samples and any discrepancy in the method of testing and the results was not resolved in the record. In any event, the evidence supports the juvenile court’s detriment finding and its orders terminating reunification services and setting a section 366.26 hearing.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.