Rodney H. v. Superior Court

Filed 3/28/06 Rodney H. v. Superior Court CA5

(Correct version posted 10/17/06; supersedes incorrect version previously posted 3/28/06)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

George Cajiga, Public Defender, and Julie Ann Bowler, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court denying an evidentiary hearing on his Welfare and Institutions Code section 388 petition,^[1] terminating reunification services and setting a section 366.26 hearing as to his son C. We will grant the petition.

STATEMENT OF THE CASE AND FACTS

In October 2004, the Orange County Social Services Agency removed then three-year-old C. from petitioner’s custody after petitioner was arrested for felony pimping, child endangerment and contributing to the delinquency of a minor. At the time, C.’s mother was incarcerated in Monterey County for driving under the influence of alcohol.

The juvenile court ordered C. detained pursuant to a dependency petition and set the matter for disposition. Meanwhile, the case was transferred to the Fresno County Superior Court (juvenile court) because C.’s mother and paternal grandmother, with whom he was placed, lived in Fresno.

At the dispositional hearing in February 2005, the juvenile court ordered the Fresno County Department of Children and Family Services (department) to provide petitioner referrals for programs in parenting and anger management, substance abuse and mental health assessments and random drug testing. The court denied reunification services for C.’s mother.

In February 2005, petitioner completed a substance abuse assessment during which he reported a 28-year history of chronic marijuana use and expressed a need for drug treatment. Consequently, he was referred for intensive outpatient drug treatment. Petitioner also completed a domestic violence assessment and was referred for a 52-week batterer’s treatment program.

In April 2005, petitioner enrolled in drug testing. The drug screens he submitted were consistently positive for the presence of marijuana and opiates. That same month, petitioner applied for and was issued a prescription for medicinal marijuana for pain control. He provided the department bottles with prescription labels authorizing his use of marijuana and Vicodin. The department acknowledged that the presence of opiates in petitioner’s system was consistent with his use of Vicodin.

Petitioner completed his parenting course and regularly visited C. with whom he displayed a strong and loving bond. However, he expressly refused to complete his other services because he did not see a need for them. That changed in late November 2005 when he began successfully participating in intensive outpatient drug treatment and in a batterer’s treatment program.

In December 2005, petitioner filed a section 388 petition asking the court to void its dispositional order requiring him to complete substance abuse treatment. As proof of changed circumstances to warrant an order modification, petitioner cited his prescription for medical marijuana. As evidence that a modification would serve C.’s best interests, petitioner cited his strong and loving bond with C. and argued that requiring him to complete drug treatment for a prescribed medication could jeopardize his parental rights. On December 6, 2005, the juvenile court summarily denied petitioner’s section 388 petition, finding that petitioner failed to make a prima facie showing that new evidence or changed circumstances warranted a modification in services and that the proposed modification would be in C.’s best interest. The court then conducted a contested 12-month review hearing on the department’s recommendation to terminate petitioner’s reunification services for failure to make substantive progress in his case plan.

Petitioner argued at trial that, if services were continued, he could complete his court-ordered plan by the 18-month review. He testified that he was attending batterer’s treatment classes twice a week and could complete the program in another five months. He also testified that he attended Alcoholics Anonymous meetings once a week and was willing to complete a mental health assessment and even explore other means of pain control if it meant regaining custody of his son.

Following argument, the juvenile court terminated petitioner’s services, finding he failed to demonstrate the capacity and ability to complete the objectives of his reunification plan and to provide for C.’s safety and well-being. Accordingly, the court set the section 366.26 hearing.

DISCUSSION

Petitioner claims the juvenile court erred in summarily denying his section 388 petition. We agree.

Section 388, subdivision (a) authorizes a parent, “upon grounds of change of circumstance or new evidence,” to petition the juvenile court “for a hearing to change, modify, or set aside any order.” To trigger a full hearing on the merits of the petition, the parent need only make a prima facie showing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) “A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.]” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “‘[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ [Citation.]” (In re Jasmine O. (1994) 8 Cal.4th 398, 415.)

In denying petitioner’s section 388 petition on its face, the juvenile court noted that its record was replete with references to petitioner’s prescription for medicinal marijuana. While the fact of the prescription may have been known to the parties, we agree with petitioner that its issuance constituted changed circumstances for purposes of a petition for a modification. We further conclude that petitioner alleged sufficient facts bearing on C.’s best interest to warrant a full evidentiary hearing on the petition. In other words, we conclude that petitioner could prevail on his petition if he provides credible evidence in support of his allegation that forcing him to complete drug treatment under his circumstances would jeopardize his parental rights. We therefore conclude the juvenile court erred in denying petitioner an evidentiary hearing on his petition and we will grant relief. Because we remand for an evidentiary hearing on the section 388 petition, we will also direct the juvenile court to vacate its orders terminating reunification services and setting the section 366.26 hearing.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its orders of January 6, 2006 denying petitioner’s section 388 petition, terminating petitioner’s reunification services and setting the section 366.26 hearing. Respondent court is further directed to conduct an evidentiary hearing on the petition as well as a new 12-month review hearing. This opinion is final forthwith as to this court.

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^*Before Harris, Acting P.J., Gomes, J., and Dawson, J.

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