Tyler H. v. Superior Court

Filed 1/22/07  Tyler H. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing.  Hideo Chino, Commissioner.  Petition denied.  The request for stay is denied.

            Tyler H. seeks review of juvenile court orders terminating his reunification services regarding his child, Kylie H., and setting a hearing under Welfare and Institutions Code section 366.26.^[1]  He contends the juvenile court erred by not extending services for six more months.  He argues he did not receive reasonable services because the relative caretaker obstructed visitation; he and Kylie's mother, Katrina E., participated regularly in services and made substantive progress; and there was a substantial probability of Kylie's return to their care before the 12-month date.  We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

            On December 30, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Kylie H. under section 300, subdivision (b), alleging she was at risk of suffering serious harm or illness because of her parents' drug use.

            Kylie and Katrina tested positive for amphetamines at Kylie's birth.  Katrina admitted using drugs one time during her pregnancy with Kylie.  She told the social worker she did not know her friends had given her methamphetamine.  Then she said she was just having fun with her friends.  The maternal grandmother said she suspected Katrina and Tyler were using and selling drugs.  Tyler's criminal history consisted of arrests on six occasions for crimes including burglary, forgery and receiving stolen property.  He said he had not used illicit drugs for seven years and was surprised Katrina had done so.  He said he had difficulty keeping employment; sometimes he would be fired and sometimes he would quit.

            The court ordered Kylie detained and granted the parents liberal supervised visitation.

            At the time of the January 18, 2006 jurisdictional and dispositional report, the parents' whereabouts were unknown.  The maternal grandmother said she believed they were living in their car.  Tyler had agreed to drug test, but did not keep his test appointments.  The social worker prepared case plans for both parents that included counseling, psychological evaluations, parenting classes and random drug tests.

            On February 9, 2006, the parents submitted to the allegations of the petition, and the court found them true.  It continued Kylie in relative placement with the maternal grandmother and ordered the parents to participate in their case plans.

            The social worker reported that in March 2006, the maternal grandmother said she could no longer care for Kylie because money and other things had been disappearing when the parents visited Kylie in her home.  Kylie was placed with the paternal step-grandmother.  The social worker reported the parents had enrolled in a parenting class, but had not started counseling or drug testing or had psychological evaluations.

            After the change in placement, visits became a problem.  The paternal step-grandmother said Kylie cried when Katrina tried to hold her and by June 2006, she was no longer willing to take Kylie to visits or provide supervision.  After a six-week hiatus, visits resumed on July 24.  The social worker observed the visit and reported the parents were very affectionate and Kylie did not cry.  The parents said they had learned a lot in parenting classes.  The social worker said although the parents had not participated in most of their required services, they were very consistent in wanting to visit Kylie.  She recommended an additional six months of services.

            In a report dated September 25, 2006, the social worker continued to recommend extending services for six more months.  The paternal step-grandmother said Kylie screamed and cried at visits and afterwards was afraid to let the paternal step-grandmother out of her sight.  On the other hand, staff at the visitation center reported during visits the parents were attentive to Kylie's needs and showed affection and parenting skills.  The social worker said the parents had begun random drug testing and tested negative on August 25.

            At the six-month review hearing on September 25, 2006, the court considered documentary evidence and arguments of counsel.  Tyler and Katrina submitted to the social worker's report and agreed with her recommendation that they receive six more months of services.  However, minor's counsel disagreed, arguing there was no legal basis to continue services because the parents had not participated regularly in services, and there was no substantial probability of return.  She noted the parents signed reunification plans in February 2006, but did not start individual therapy until August 22 or random drug testing until August 25, did not complete a parenting class until September 7 and had not yet presented psychological evaluations.

            The court found returning Kylie to the parents' custody would create a substantial risk of detriment and reasonable services had been provided or offered, but the parents had not participated on a regular basis or shown substantive progress.  The court found there was no substantial probability of return within the next six months.  It terminated reunification services and set a section 366.26 hearing.

            Tyler petitions for review of the court's orders.  (§  366.26, subd. (l); Cal. Rules of Court, rule 8.452, former rule 38.1.)  This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

I

            Tyler contends the juvenile court erred by not extending services for an additional six months.  He argues he did not receive reasonable reunification services because the paternal step-grandmother obstructed visitation.  The Agency argues he has forfeited this issue because he did not make the claim in juvenile court.

            " A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court."   (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)  A " reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court.  [Citation.]  [¶]  Dependency matters are not exempt from this rule."   (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)  Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights.  (In re Seaton (2004) 34 Cal.4th 193, 198.)  We conclude Tyler has forfeited this issue.

            Even were we to consider the issue, we would find Tyler has not sustained his burden to show a lack of substantial evidence to support the court's finding of reasonable services.  A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence.  (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.)  " [W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '.  .  .  view the record in the light most favorable to the orders of the juvenile court.'  "   (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.)  In determining the sufficiency of reunification services the role of the appellate court is to decide " whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered."   (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)  A service plan must take into account the specific needs of the family.  (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)  The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances.  (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)  The appellant bears the burden to show the evidence is insufficient to support the court's findings.  (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

            Tyler was offered and provided reasonable services designed to address the problems that led to Kylie's dependency.  In addition to visitation, he was offered parenting education, counseling and drug testing, and a psychological evaluation.  His argument that visitation was insufficient is unfounded.  He and Katrina had regular visits and contact with Kylie until mid June 2006 when, after the June 18 visit, the paternal step-grandmother said she was no longer willing to transport Kylie to visits or provide supervision because the visits were distressful to Kylie.  The social worker immediately began working toward providing visits at a visitation center.  There was delay at first because the visitation center did not have openings on weekends, the only time the parents were available to visit.  When their schedule became more flexible, visits began again on July 24.  The short hiatus in visits does not show that services were insufficient.  The finding of reasonable services is well supported.

II

            Tyler also asserts both parents regularly participated and made substantive progress in services.  The record does not support this claim.

            Tyler's case plan required that he participate in parenting education, individual therapy, substance abuse testing, and a psychiatric evaluation.  On February 9, 2006, the court ordered him to comply with his case plan.  He did not begin a parenting class until June 29 and completed it on September 7.  He did not drug test until August 25.  By September 22, he had had only three sessions with a therapist.  By the time of the hearing on September 25, he had not participated in a psychological evaluation.  The court commented:  " The problem with this case is the parents have not been particularly consistent.  They have sort of drifted and waited until the last minute and then there's this feverish activity."   The record shows Tyler did nothing toward reunifying with Kylie, except to visit her for several months after being ordered to comply with his case plan, not beginning drug testing and counseling until just before the six-month hearing and not undergoing a psychological evaluation.  Substantial evidence supported the court's finding he did not regularly participate in or make substantive progress in the provisions of his case plan.

III

            Tyler contends there was a substantial probability of Kylie's return to the parents' care before the 12-month date.  He argues he met all three criteria required by section 366.21, subdivision (g)(1) to find a substantial probability of return: consistent contact and visits, significant progress in resolving the problems that led to removal, and the capacity and ability to complete the objectives of his treatment plan and provide for Kylie's safety, protection and well-being.^[2]

            Section 366.21, subdivision (e) states the court may terminate services and schedule a section 366.26 hearing for a child who was under three years of age at the time of removal or a member of a sibling group in which one member was under the age of three and the parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan.  The court may, however, continue the case to the 12-month hearing if it finds a substantial probability the child may be returned to the parents within six months.

            Substantial evidence supports the court's finding there was no probability Kylie could be returned to the parents' care by the 12-month date.  Kylie entered foster care on February 9, 2006.  At the six-month hearing on September 25, Tyler had only four and one-half months to reunify with Kylie.  (§  366.21, subd. (f).)  Tyler had maintained regular visitation and contact with Kylie but at the time of the six-month hearing, he had just begun to actively participate in the requirements of his case plan in order to address the problems that led to her removal.  Kylie was removed because she tested positive for amphetamines at birth.  Tyler said he was surprised by this result and supported Katrina's explanation that she had not known the substance her friends gave her was methamphetamine.  He did not drug test until August 25, 2006, did not start therapy until just before the hearing, and had not had a psychological evaluation.  His therapist did not report that he was making progress to indicate he could be a safe parent to Kylie in the near future and indicated he might need an evaluation for psychotropic medication.  Substantial evidence supports the court's finding there was no substantial probability of return by the 12-month date.

DISPOSITION

            The petition is denied.  The request for stay is denied.

McCONNELL, P. J.

WE CONCUR:

                                   McINTYRE, J.

                                         AARON, J.

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^[1]           All statutory references are to the Welfare and Institutions Code.

^[2]           The Agency argues section 366.21, subdivision (g)(1) by its terms applies only when the court is considering extending services to the 18-month date.  It acknowledges however that former California Rules of Court, rule 1460(f)(1)(E) (effective January 1, 2007, rule 5.710 (f)(1)(E)) sets forth that criteria as also applying at a six-month hearing.