In re Victoria H.
Filed 10/16/06 In re Victoria H. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re VICTORIA H., a Person Coming Under
The Juvenile Court Law.
MARK H., A114802
Petitioner, (Contra Costa County
Super. Ct. No. J04-01194)
THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA, COUNTY OF CONTRA
COSTA,
Respondent,
CONTRA COSTA COUNTY, CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
_______________________________________/
Mark H.[1] has filed a petition for a writ under California Rules of Court, rule 38.1,[2] challenging the juvenile court’s decision to set a hearing pursuant to Welfare and Institutions Code, section 366.26,[3] to consider whether Dawn W.’s parental rights as to her daughter Victoria should be terminated. Mark contends the court erred when it declined to place Victoria with him, and that the court’s ruling that Victoria would be at risk if she were placed with Dawn is not supported by substantial evidence. We will reject these arguments and deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, Dawn M. gave birth to a daughter, Victoria. Five days after her birth, a petition was filed alleging Victoria was a dependent child within the meaning of section 300, subdivision (b) because she had been born with a positive toxicology screen for amphetamine and methamphetamine. The petition was sustained, and Dawn was given a reunification plan that required her to participate in and complete a substance abuse program, to be tested for drugs regularly, and to successfully complete counseling and parent education classes.
At that time, Mark was an alleged father and he was not given any reunification services. However, the dispositional report raised serious questions about whether Mark could parent Victoria effectively or adequately. Mark had a lengthy criminal history, and a long history of drug abuse. In addition, Mark’s own adult daughter voiced serious concerns about Mark’s parenting skills having experienced them when she was a child.
In January 2005, Mark raised his status to that of a presumed father. He was given a reunification plan that required him to complete domestic violence and parenting classes, to successfully participate in and complete a substance abuse treatment program, and to obtain regular drug testing. Unfortunately, Mark failed to complete any part of the plan except drug testing, and his reunification services were terminated in July 2005.
Dawn had entered a residential substance abuse program and she was making significant progress. In light of this positive development, Children and Family Services recommended that Victoria be returned to her custody.
However, in April 2006, a supplemental petition was filed alleging Dawn had been discharged from her program because drug paraphernalia had been found in her room. The court sustained the petition at a May 2006, hearing.
A dispositional hearing was conducted on July 13, 2006. Mark argued that if Victoria was to be removed from Dawn’s custody, she should be placed with him. The court declined that option, ruling that placing Victoria with Mark would be detrimental to her health, safety and welfare. The court then terminated Dawn’s reunification services and set the matter for a hearing on October 31, 2006, to determine whether Dawn’s parental rights should be terminated.
This petition followed.
II. DISCUSSION
A. Sufficiency of the Evidence Concerning Placement with Mark
Mark contends the court’s ruling that it would be detrimental to Victoria if she were placed in his custody is not supported by substantial evidence.
The standard of review we apply is settled. The juvenile court must make the finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) On appeal, 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 [child] would suffer such detriment. [Citations.]” (Ibid.)
The record here is clearly sufficient. Mark has a lengthy criminal history that includes convictions for violent crimes. He is a long-term drug abuser who tested positive for cocaine as recently as May 2006. Mark’s own adult daughter expressed doubts about his parenting abilities having experienced them as a child. Mark failed to complete any aspect of his reunification plan other than to comply with drug testing. Even that minor success is overshadowed by the fact that Mark subsequently tested positive for cocaine. Mark did not have a job or a home and he was living with his adult daughter. Child protection authorities were reluctant to place Victoria in that particular household because it had a “longstanding history” of referrals. Indeed, when the authorities went to the house to retrieve Victoria, they found animal feces on the floor. The trial court reviewing this evidence could reasonably conclude Victoria would suffer detriment if placed in Mark’s custody.
Mark disputes this conclusion. He cites In re Danielle M. (1989) 215 Cal.App.3d 1267, 1270, for the proposition that placement with a parent who is homeless and who does not have a job is not necessarily detrimental. He tries to minimize his numerous criminal convictions by noting that the last one occurred approximately 13 years ago. He also minimizes his positive drug test noting it was preceded by a lengthy period of negative drug tests.
These arguments fail under the applicable standard of review. The question is not whether each of the factors we have cited is sufficient, by itself, to support the court’s finding, or whether it might be possible to interpret the record as showing that Victoria could live with Mark without suffering detriment. Rather, our task is to determine whether those factors, in combination and viewed in the light that is most favorable to the court’s ruling, constitute substantial evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) Viewed in that light, the evidence is more than adequate.
B. Sufficiency of the Evidence Concerning Placement with Dawn
The trial court found by clear and convincing evidence that Victoria would be in substantial danger if she were left in Dawn’s custody. Mark now challenges that finding, claiming it is not supported by substantial evidence. We need not address this issue because Mark lacks standing to raise it.
The longstanding rule is that one parent lacks standing to raise issues that only affect the other parent. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193.)[4] Applying that principle here, we note that whether or not Victoria would be in substantial danger if left in Dawn’s custody is only relevant on the issue of whether Dawn has a right to custody. Appellant’s right to custody is unaffected. We conclude Mark cannot raise an issue that does not affect his own legal rights.
The cases Mark cites do not convince us he has standing. The issue in In re Catherine H. (2002) 102 Cal.App.4th 1284, 1292, was whether a parent had standing to request a contested dispositional hearing. Appellate standing was not mentioned. While the court in In re Elizabeth M. (1997) 52 Cal.App.4th 318, at least addressed appellate stating, the court simply ruled that a parent who filed a section 388 petition in the trial court could challenge the denial of that petition on appeal. (Id. at p. 324.) That holding is not controlling here.
We conclude Mark lacks standing to challenge a custody ruling that affected only Dawn’s legal rights.
III. DISPOSITION
The order to show cause is discharged, and the petition for extraordinary relief is denied on the merits. (Rule 38.1(i)(1).) Petitioner is barred in any subsequent appeal from making further challenges to the orders terminating reunification services and setting a hearing under section 366.26. (§ 366.26, subd. (l).) Because the section 366.26 hearing is set for October 31, 2006, our decision is final as to this court immediately.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Bruiniers, J.*
*Judge of the Superior Court of Alameda County, assigned by the Chief Justice
Pursuant to article VI, section 6 of the California Constitution.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line Lawyers.
[1] We will refer to the parties by their first names in order to protect their and their daughter’s privacy.
[2] Unless otherwise indicated, all rule references will be to the California Rules of Court.
[3] Unless otherwise indicated, all statutory references will be to the Welfare and Institutions Code.
[4] An exception exists when both parents’ rights are intertwined. (In re Caitlin B., supra, 78 Cal.App.4th at p. 1193.) As we explain in the body of the opinion, that exception does not apply here.
