Filed 8/28/17 D.S. v. Superior Court of Fresno County CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary Green, Commissioner.

D.S., Sr., in pro. per., for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

D.S., Sr., (father), in propria persona, filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) and challenges the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1))[1] terminating his reunification services and setting a section 366.26 hearing as to his now one-year-old son, D.S., Jr., (D.S.). Father contends the juvenile court applied the wrong legal standard in finding there was not a substantial probability D.S. could be returned to his custody. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Newborn D.S. was taken into protective custody in August 2016 by the Fresno County Department of Social Services (department) after his mother, K.R. (mother), tested positive for methamphetamine and marijuana while being admitted to the hospital to give birth. She reported using drugs throughout her pregnancy. Father also reported a history of methamphetamine use.

The department filed a dependency petition, alleging the parents’ substance abuse and domestic violence placed D.S. at a substantial risk of harm. (§ 300, subd. (b)(1) (failure to protect).) On August 16, 2016, the juvenile court ordered D.S. detained pursuant to the petition and ordered the department to offer the parents parenting, substance abuse, mental health and domestic violence services and random drug testing pending its disposition of the case. The court also ordered the department to provide the parents weekly, supervised visitation. The department placed D.S. with a relative. In August 2016, after the detention hearing, father enrolled in a drug testing service and tested positive for amphetamine and marijuana. He subsequently failed to drug test. He had appointments for substance abuse, mental health and domestic violence assessments over the next several months but missed them as well as the rescheduled appointments. He was scheduled to begin a parenting class in November 2016.

In its report for the jurisdictional hearing, the department recommended the juvenile court find the allegations in the petition true. The department informed the court that mother had a history of moving back and forth between Fresno and Sacramento counties and leaving her children with unsafe individuals while she participated in prostitution and drug use. The department was concerned the parents would harm D.S. by their methamphetamine use and domestic violence if the juvenile court did not intervene.

On September 20, 2016, the parents appeared at the jurisdictional hearing and waived their right to a contested hearing on the allegations in the petition. The juvenile court adjudged D.S. a dependent child as alleged. On October 25, at the dispositional hearing, the court ordered the parents to participate in reunification services, consisting of the services it offered at the detention hearing. The court set the six-month review hearing for April 2017. Neither parent personally appeared at the dispositional hearing.

Unbeknownst to the department, father was incarcerated in October 2016 on a probation violation and released on November 10, 2016. He contacted the visitation center and set up weekly visits. The first was scheduled for November 18 but father did not attend. He visited on December 2 and then was removed from the visitation schedule after he missed three consecutive visits in December. He was also dropped from his parenting class for missing the first three classes and reenrolled for the class in February 2017. The department scheduled a meeting on November 28, 2016, to reestablish father’s service referrals but he missed that meeting as well.

On February 8, 2017, father was arrested and convicted of receiving a stolen vehicle and unauthorized use of personal identification. There were no services available to him in jail.

On March 28, 2017, father’s social worker took D.S. to the jail to visit him. Though father was excited to see D.S., D.S. did not appear to recognize him. D.S. was quiet and did not respond to father’s attempts to talk to him through the phone or to his taps on the glass window. The visit lasted 10 minutes. Afterward, father agreed to reduce visits to once monthly while he was incarcerated.

In its report for the six-month review hearing, the department recommended the juvenile court terminate reunification efforts and set a section 366.26 hearing because neither parent had made progress in their court-ordered services and there was not a substantial probability D.S. could be returned to their custody. Though mother regularly contacted and visited D.S., she was unable to complete substance abuse treatment and continued to test positive for amphetamines. Father had not consistently visited D.S. or maintained contact with the department.

Father’s attorney filed an issue statement, objecting to the department’s recommendation and pointing out that the department failed to consider that he was unable to participate in services because he was incarcerated.

The juvenile court continued the six-month review hearing and conducted it in May 2017 as a contested hearing. Father appeared in custody and testified that he was sentenced in April and released to participate in a substance abuse program. He was just waiting to be admitted. The program, called Papa Natal, was designed for fathers rehabilitating with their children. Father explained that he missed visits in the months prior to his arrest in February 2017 because he was homeless and was looking in

Los Angeles and Las Vegas for a place to live. He anticipated being able to take care of D.S. and wanted the court to continue his services so he could resume custody of him.

The juvenile court terminated reunification services and set a section 366.26 hearing. The court did so after finding by clear and convincing evidence the department provided the parents reasonable reunification services but that they made minimal progress. The court also found there was not a substantial probability D.S. could be returned to their custody by the 12-month review hearing, which would be scheduled in four months, in September 2017.

In finding there was not a substantial probability of return, the juvenile court made the following statement, which father contends proves the court applied the wrong legal standard:

“I need to look at the factors of consistent and regular visits, significant progress and demonstrated ability. I need to look at those factors and determine whether there’s a substantial probability that there will be a return at 12 months.”

DISCUSSION

Father contends the juvenile court mistakenly believed that it lacked discretion to continue reunification services unless the three factors listed in section 366.21, subdivision (g)(1)(A)-(C) were satisfied. Those factors are: (A) the parent consistently and regularly contacted and visited the child; (B) the parent made significant progress in resolving the problems that led to the child’s removal from the home; and (C) the parent 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 wellbeing and special needs. These factors do not apply at the six-month review hearing. Rather, they apply at the 12-month review hearing when the juvenile court must decide whether to continue reunification services or terminate them and set a section 366.26 hearing. The court can only continue reunification services if it finds a substantial probability of return exists because there is evidence to satisfy all three factors. (§ 366.21, subd. (g)(1).)

The juvenile court’s decision whether to terminate reunification services at the six-month review hearing is governed by section 366.21, subdivision (e)(3). Where, as here, the juvenile court determines that a child who was under the age of three years old on the date of the initial removal cannot be returned to parental custody, subdivision (e)(3) provides “the court may schedule a hearing pursuant to Section 366.26” if it finds by clear and convincing evidence that the parent failed to regularly participate and make substantive progress in a court-ordered treatment plan. “If, however, the court finds there is a substantial probability that the child, … may be returned to his or her parent … within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e)(3).)

In determining whether there is a substantial probability of return at the six-month review hearing, the juvenile court is not limited to the provisions of section 366.21, subdivision (g)(1), but may consider any relevant evidence in making its finding.

(M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 181.) Thus, the juvenile court errs only if it concludes it has no discretion to continue reunification services if the three factors are not met. (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016.) Such is not the case here.

In ruling on the probability of return, the juvenile court commented in detail on father’s participation in his court-ordered services as well as his likelihood of success in the Papa Natal program. The court stated,

“Based on [father’s] lack of participation in services, I’m not seeing a lot to hang my hat on to suggest that he will be able to turn it around and reunify. There is little evidence of what [the] Papa Natal program will do. [Father] described it. It sounds like a good program. I wish him success in that program. But how that will translate into reunification, I don’t know.…

“[Father’s attorney] asked me to look at the totality of the circumstances. I certainly have; I’ve looked at everything. I’m not seeing anything that would suggest that there is a substantial probability of a potential reunification.”

There is nothing to suggest that the juvenile court limited its consideration to the factors in finding there was not a substantial probability of return. The court stated it considered the “totality of the circumstances” and “looked at everything.” Nor is there any evidence the juvenile court did not understand it had discretion to continue father’s reunification services. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final as to this court.