M.H. v. Super. Ct. CA1/1 ( 2014 )

Filed 12/31/13 M.H. v. Super. Ct. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
M.H.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA A139900
COSTA COUNTY,
(Contra Costa County
Respondent; Super. Ct. No. J1200923)
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU
et al.,
Real Parties in Interest.
Petitioner M.H. (Father) seeks extraordinary relief from an order of the Contra
Costa County Superior Court terminating his reunification services and setting a hearing
under Welfare and Institutions Code1 section 366.26 to select a permanent plan for his
daughter M.H. (minor), born in November 2006. Finding substantial evidence to support
the findings challenged by Father, we deny the petition for extraordinary writ on the
merits.2
1
All statutory references are to the Welfare and Institutions Code.
2
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved
party has not made a timely writ challenge to an order setting a hearing under section
366.26, and encourages the appellate court to determine such writ petitions on their
merits. (See § 366.26, subd. (l)(4)(B).)
1
FACTUAL AND PROCEDURAL BACKGROUND
Recently, we affirmed the trial court’s jurisdictional findings and dispositional
orders in this matter and described the factual background to that point as follows: “On
June 7, 2012, the Contra Costa County Children and Family Services Bureau (Bureau)
filed a juvenile dependency petition alleging that [minor], then five years of age, came
within the juvenile court’s jurisdiction pursuant to the provisions of Welfare and
Institutions Code section 300, subdivision (d) (sexual abuse). [Fn. omitted.] The petition
was supported by the allegation that the girl had been sexually abused while in Father’s
custody.3 In further support of the allegation, the Bureau also stated that the child had
tested positive for the sexually transmitted disease gonorrhea. [¶] The case came to the
Bureau’s attention on June 5, 2012, when it was reported that [minor’s] maternal
grandmother had taken the child to a pediatrician on June 1, 2012 due to a vaginal
discharge and an abscess on her buttock. The doctor took various specimens for testing.
On June 5, 2012, the lab results showed the child tested positive for gonorrhea and a
staph infection. Per the doctor, the results confirmed sexual abuse. Reportedly, [minor]
had stated that she slept in the bed with one of her teenage uncles, K.S., while at Father’s
home.4 [¶] During the initial investigation, Father and the paternal grandmother did not
seem to understand that gonorrhea is a sexually transmitted disease and that [minor] had
been sexually abused. The paternal grandmother believed the infection occurred because
the child ‘wipes wrong and she scratches herself.’ She also stated that she had spoken
with K.S., who is her son, and he explained that he had given the girl a bath because she
had urinated on herself. During an exam conducted by a sexual assault specialist, the
child disclosed that K.S. had put her panties on the ground, kissed her on the lips, made
her hold his penis, and rubbed her vagina and butt with his fingers. She also stated that it
really hurt badly when he rubbed her butt. The child was taken into protective custody
and placed in a foster home. [¶] On June 8, 2012, the juvenile court ordered [minor]
3
[Minor’s] mother was murdered in August 2011 in a shooting in Oakland.
4
K.S. is Father’s younger half-brother.
2
detained in a nonrelative placement. Father was referred to parenting and sexual abuse
education services. The court ordered that K.S. have no contact with the child.5 Father
was granted supervised visitation at a minimum of one hour, two times per month.” (In
re M.H. (Sept. 30, 2013, A137159) [nonpub. opn.], 2013 Lexis 7038, at pp. *1–3.)
“On September 26, 2012, the juvenile court denied Father’s motion to have the
section 300, subdivision (d), allegations dismissed. The juvenile court found jurisdiction
under that subdivision, concluding that the perpetrator, K.S., was a member of the child’s
household. [¶] A contested dispositional hearing was held beginning on October 22,
2012. At the conclusion of the hearing, the juvenile court declared [minor] a dependent
and ordered her removed from Father’s custody pending the provision of family
reunification services to him.” (In re M.H., supra, 2013 Lexis 7038, at pp. *5–6.) As
specified in the case plan approved and adopted in the juvenile court’s dispositional
orders, Father was required to complete individual counseling, a program of sexual abuse
treatment for non-offending parents, and a parenting education program.
We pick up the procedural and factual history of the case following the
dispositional hearing. On February 13, 2013, the Bureau filed a subsequent petition
pursuant to section 342, alleging failure to protect under section 300, subdivision (b) on
the grounds Father’s substance abuse impairs his ability to adequately supervise and care
for the minor. Specifically, the subsequent petition alleged Father abuses promethazine
with codeine, marijuana and alcohol. The Bureau learned of Father’s drug use after
viewing photographs on a Facebook account belonging to Father displaying photos of
Father with empty prescription bottles, identified as codeine with promethazine, large
quantities of cash, bottles of tequila, small bags of marijuana, and what appears to be a
small scale used for measuring drugs. The combination of promethazine and codeine is a
recreational street drug popular in the hip hop community, and “because of the color and
sweetness of the drink, a child could easily be attracted to the beverage.”
5
K.S. also tested positive for gonorrhea.
3
On April 17, 2013, the juvenile court entered an order dismissing the subsequent
petition without prejudice, subject to the following conditions: “Father has agreed to test
for drugs and alcohol for three months between now and August 2013 . . . . However,
because he has a marijuana card, positive tests for marijuana will be excused for the first
five weeks of testing. He is also excused from tests until his temporary employment in
Santa Clara County is concluded, no longer than 21 days. Following that date,
anticipated to occur within the first five weeks of testing, missed tests will be considered
positive. If father tests positive for drugs or alcohol, except for THC during the first five
weeks of testing, he will enter and complete a drug treatment program. . . . Father is to
provide proof of employment in Santa Clara County 14 (fourteen) days from the date of
this order.”
Subsequently, the Bureau submitted a status review report for the six-month
review hearing on May 29, 2013. In the report, the case worker states minor was recently
placed with her maternal aunt and family in Solano County after her prior placement was
no longer able to provide foster care services. The minor’s therapist reported the minor
has been adjusting to trauma caused by sexual abuse, loss of her mother and removal
from her family. Further, the therapist stated the minor has been exposed to “intense
domestic violence” by Father against his female friend; also the minor went into a
“dissociative state” while re-enacting violent scenes of a fight she witnessed between
Father and grandpa in which Father “pulled out a knife at grandpa.” Also, the minor
mentioned Father has a gun and that she has seen the “ ‘black gun’ in the kitchen.”
In addition, the case worker noted court-ordered random drug testing was delayed
based on Father’s representations he had a six-week work assignment in Santa Clara
County and he could not drug test there because he did not have a car. However, Father
showed minor a photo of his green car during a visit, and has been seen driving a green
car around Antioch. Father told the case worker he is “on call” for work in Santa Clara
County and claimed his public defender “was lying” about a definite work assignment.
Also, Father reported he is homeless and no longer residing at the apartment where minor
resided with her mother before her mother died. A relative reported to the case worker
4
that Father was evicted because he was conducting illegal activities at the apartment,
although the report is unconfirmed. Further, the case worker stated the Bureau was
concerned about Father’s violent tendencies, as described by the minor in her therapy
sessions.
The case worker recommended against returning the minor to Father’s care, noting
that whereas Father had completed a parent education class he began in June 2012, he did
not contact her to discuss what he has learned about parenting or his understanding of the
traumatic behaviors a child may display following sexual abuse. Father only recently
began drug testing and his only test so far was positive for marijuana. Also, Father may
be residing with the paternal grandmother and the uncle who sexually abused the minor,
and has not demonstrated he is drug free, sober and able to meet minor’s physical and
emotional needs. However, the case worker recommended continuing family
reunification services to Father, in the expectation Father will engage in therapeutic
services, continue to drug test, and provide the Bureau with information verifying his
participation in services to address the problems that resulted in dependency.
At the hearing held on May 29, 2013, the court stated it was “very troubled by
what I read in this report on father’s behavior,” and believed “there was a fraud
perpetrated on the Court and the parties” concerning Father’s purported work schedule.
The court informed Father that “if you have any hopes of reunifying with your child, you
[had] better start complying and you [had] better start doing it right now,” and stated the
minor “would be at severe risk of harm in your care and custody based on what I read in
this report and given the issues that presented themselves, a child who was sexually
abused by a family member, and no one is coming to grips with that issue. And we’ve
got a dad who’s checked out on drugs and not participating in testing or in treatment.”
Also, the court struck a recommendation that the Bureau “may authorize consecutive
overnight visits” with Father, and asked if there was “any objection to the Court adopting
the recommendations as stated.” After none of the parties lodged an objection, the court
adopted the Bureau’s recommendations as modified and scheduled the matter for the 12-
month review.
5
The Bureau’s 12-month status review report requested that the court terminate
family reunification services to Father and set a section 366.26 hearing on behalf of the
minor. The report states Father completed the parent education course required under the
case plan. Father only recently began to drug test and the tests for April 29 and May 6
were both positive for marijuana. Father failed to appear for drug testing on June 4, 12,
17 and 28. The report states the Bureau was unaware whether Father continues to be
homeless and is concerned he may be residing in the same household as the minor’s
sexually-abusive uncle. Also, Father was recently involved in a shooting and sustained
two bullet wounds to the leg, although he claims he was an innocent party to the
shooting. Father expressed to the case worker that he would like the minor to reside with
her maternal family and understands that he is unable to meet the minor’s emotional,
educational and physical needs at this time.
At the hearing held on September 23, 2013, the Bureau’s 12-month review report
was received into evidence without objection and no other evidence was presented.
Counsel for Father objected to the recommendation to terminate services, stating Father
“has had a lot of difficult issues,” including homelessness and the recovering from
gunshot wounds; counsel argued the court should “continue to give [Father] an
opportunity to reunify in light of his hardships.” The court disagreed, stating the case had
been ongoing for 16 months without any evidence Father “has engaged in any
meaningful participation in his case plan.” The court noted Father failed to enroll “in a
treatment program relating to the sexual abuse of his child,” and failed to participate in
individual counseling and drug testing. Thereafter, the court ordered termination of
family reunification services for Father and set a hearing pursuant to section 366.21 for
January 16, 2014. This writ proceeding followed.
6
DISCUSSION
Father contends that the juvenile court’s order terminating reunification services is
not supported by substantial evidence.6 He further contends the court erred in denying
his request to extend reunification services for another six months to the 18-month review
date. Neither contention is persuasive.
“At the 12–month permanency hearing, the court must determine the permanent
plan for the child, including whether the child will be returned to the child’s home and to
the physical custody of his or her parent. (§ 366.21, subd. (f).) The juvenile court must
also determine whether reasonable services have been provided or offered to the parent or
parents.”7 (In re K.L. (2012) 210 Cal. App. 4th 632, 636.)
Subdivision (g) of section 366.21 governs dependency proceedings at 12–month
review hearings; it provides, in relevant part: “If the time period in which the court-
ordered services were provided has met or exceeded the time period set forth in [section
361.5, subdivision (a)] and a child is not returned to the custody of a parent or legal
guardian at the permanency hearing held pursuant to subdivision (f), the court shall do
one of the following: [¶] (1) Continue the case for up to six months for a permanency
review hearing, provided that the hearing shall occur within 18 months of the date the
child was originally taken from the physical custody of his or her parent or legal
guardian. The court shall continue the case only if it finds that there is a substantial
probability that the child will be returned to the physical custody of his or her parent or
6
Father also contends the juvenile court erred by failing to adopt the Bureau’s
unopposed recommendation to extend Father’s reunification services for an additional six
months in its order of May 29, 2013. Preliminarily, Father’s contention is not cognizable
in this writ proceeding because the order of May 29 was entered after the dispositional
hearing, therefore, it was appealable as an order after judgment and Father did not file a
notice of appeal within 60 days of the date of the order. (See In re Daniel K. (1998) 61
Cal. App. 4th 661, 666–667.) Moreover, Father’s contention is not supported by the
record, which shows Father continued to receive reunification services after the May 29
hearing until services were terminated after the 12-month status review hearing on
September 23, 2013.
7
Father does not complain in this petition that inadequate reunification services
were provided to him.
7
legal guardian . . . . For the purposes of this section, in order to find a substantial
probability that the child will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended period of time, the
court shall be required to find all of the following: [¶] (A) That the parent or legal
guardian has consistently and regularly contacted and visited with the child. [¶] (B) That
the parent or legal guardian has made significant progress in resolving problems that led
to the child’s removal from the home. [¶] (C) The parent or legal guardian has
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
well-being, and special needs.”
Thus, during the period in the dependency that “ ‘runs from the 12–month review
hearing to the 18–month review hearing (§ 366.22), services are available only if the
juvenile court finds specifically that the parent has “consistently and regularly contacted
and visited with the child,” made “significant progress” on the problems that led to
removal, and “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 well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)–(C).)’ [Citation.]”
(A.H. v. Superior Court (2010) 182 Cal. App. 4th 1050, 1058.) “[A]t the 12–month
permanency hearing, the juvenile court can continue the case and court-ordered family
reunification services to the 18–month review date only if ‘there is a substantial
probability that the child will be returned to the physical custody of his or her parent.’
(§§ 366.21, subd. (g)(1), 361.5, subd. (a)(3).)” (In re K.L., supra, 210 Cal.App.4th at
p. 642.) “[M]oreover, the court must find all three of the listed factors to justify a finding
of a substantial probability the child will be returned to his or her parent. (§ 366.21,
subd. (g)(1).)” (M.V. v. Superior Court (2008) 167 Cal. App. 4th 166, 178.)
Furthermore, our review of the juvenile court’s decision is quite constrained. “We
review an order terminating reunification services to determine if it is supported by
substantial evidence. [Citation.] In making this determination, we review the record in
the light most favorable to the court’s determinations and draw all reasonable inferences
8
from the evidence to support the findings and orders. [Citation.] ‘We do not reweigh the
evidence or exercise independent judgment, but merely determine if there are sufficient
facts to support the findings of the trial court.’ [Citation.]” (Kevin R. v. Superior Court
(2010) 191 Cal. App. 4th 676, 688–689.) Substantial evidence is “reasonable, credible
evidence of solid value such that a reasonable trier of fact could make the findings
challenged . . . .” (In re Brian M. (2000) 82 Cal. App. 4th 1398, 1401.)
Given our limited reviewing function, we find substantial evidence to support the
finding at the 12–month review hearing that there was no substantial probability the child
will be returned to Father by the 18–month deadline. Whereas the Bureau acknowledged
Father engaged in some aspects of his case plan and completed a parent education course,
Father did not make definitive or significant progress in resolving problems that led to the
child’s removal from the home, nor did he demonstrate the capacity and ability both to
complete the objectives of his treatment plan and to provide for the child’s safety,
protection, physical and emotional well-being, and special needs, as required by section
366.21, subdivision (g)(1), to continue services to the 18–month hearing. (M.V. v.
Superior Court, supra, 167 Cal.App.4th at pp. 177–178.) In this regard, Father was
homeless and did not have satisfactory housing for the child. Father failed to comply
with regular drug testing as mandated by the court as a condition for dismissing the
subsequent petition filed pursuant to section 342, and failed to complete individual
counseling as required under the case plan. Most importantly, Father did not enroll in
and complete a program of sexual abuse treatment for non-offending parents, reflecting a
wholesale failure on his part to address the issues arising from the shocking sexual abuse
of his five-year-old daughter by his younger brother that led to these dependency
proceedings.8
8
Father contends that the injuries he sustained as a result of two gunshot wounds
impeded his ability to actively participate in the sexual abuse treatment program for non-
offending parents. However, the court specified that Father engage in a sexual abuse
treatment program in its dispositional orders issued in November 2012, long before
Father was shot. Also, Father presented no evidence whatsoever at the 12-month review
9
In sum, the record amply supports the juvenile court’s decision to terminate
reunification services at the 12-month stage of the dependency proceeding.
hearing about how his medical condition purportedly impacted his ability to comply with
the case plan.
10
DISPOSITION
The petition for extraordinary writ is denied on the merits and the request for stay
is denied. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal. 4th 888, 894;
Bay Development, Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1024.) The decision is
final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).)
______________________
Becton, J.*
We concur:
______________________
Dondero, Acting P.J.
______________________
Banke, J.
* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
11