Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. JV48584, Ginger E. Garrett, Judge
Frederick F. Foss for Petitioner.
No appearance for Respondent.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Real Party in Interest.
COFFEE, J.
Father seeks extraordinary writ review of an order of the juvenile court terminating reunification services and setting the matter for a hearing terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, § 366.26.) Mother is not a party to the writ proceeding. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
In September 2009, 17-month-old R.J. was removed from her mother's home. R.J. has special needs due to mother's drug use during pregnancy. An amended juvenile dependency petition alleged that mother was in possession of marijuana and had engaged in credit card fraud. She has a history of substance abuse which includes alcohol, marijuana and heroin. Mother receives methadone treatment for opioid addiction. She is mentally unstable and often left R.J. in the care of the maternal grandmother who is unable to provide adequate care. R.J. was placed in an Option for Recovery (OFR) foster home for children who have been exposed to drugs or alcohol.
Troy J. is the presumed father of R.J., by virtue of being married to mother. The identity of the biological father is unknown. The amended petition alleged that Troy J. (father) could have taken a more active role in protecting R.J. from mother's neglect.
Mother and father separated before R.J. was born. They have remained married, but live apart. They have three older children, one of whom is an adult. Father obtained temporary custody of the two minor children, Cody, age 16, and Lindsey, age 6. Cody has been involved with the probation department and has truancy problems.
On December 8, 2009, the parties stipulated that father would have temporary sole legal and physical custody of Cody and Lindsay and mother would have visitation. They were to return to mediation on June 7, 2010, to review their agreement.
At birth, R.J. was addicted to methadone and tested positive for marijuana. She suffers significant health problems which include an uneven gait, limited use of one of her hands, and difficulty tracking her eyes evenly. She requires ongoing services, such as speech therapy, occupational therapy, physical therapy and early intervention. Without these services, it is likely her development may regress.
In March 2009, father was charged with drunk driving, which was reduced to reckless driving with an agreement to participate in a court ordered alcohol program. The parties submitted to jurisdiction and disposition on November 17, 2009. The Department of Social Services (department) recommended that both parents be offered six months of reunification services.
Father's case plan required that he attend a domestic violence prevention program, obtain a drug and alcohol services assessment, remain sober, demonstrate his ability to meet R.J.'s special needs, and attend a parenting education program. The department recommended that he have two to three unsupervised visits per week with R.J. After the dispositional hearing, the court made the appropriate findings and ordered the parties to comply with their case plans.
At the three-month interim hearing, the department recommended that services continue for another three months. According to the report, R.J. had significant speech delays and exhibited attention-seeking behavior. If she did not receive complete attention from her foster parents, she behaved inappropriately. She would hit her head on the floor, bite, pull out her hair, have violent temper tantrums, break household objects, hit other children and smear her feces on the wall. The department reported that R.J. exhibited negative behaviors following visits with mother and father.
The department was considering offering father an additional overnight visit with R.J. He had completed a drug and alcohol assessment, and it was determined that he did not require treatment. He intended to complete a parenting education program. The social worker indicated that father appeared to be motivated to have R.J. in his care, due to his consistent progress in his case plan, and his agreement to participate in her assessment with the foster parents. Mother's visits were supervised. The department was concerned about father's ability to set boundaries with mother, because he had allowed her to visit R.J. during his visitation. This was prohibited by the department. It suggested father obtain mental health counseling to assist him in his contact with mother.
Reports Prepared for Sixth-Month Review Hearing
The department prepared two reports for the six-month review hearing, recommending termination of reunification services for both parents. It recounted the following events:
In December 2009, father was offered twice weekly overnight visits with R.J., but wanted only one overnight per week. In January 2010, he reported that his automotive business had failed and that he was struggling to find employment. He had originally believed that he would receive foster care money if R.J. were placed with him and planned on using those funds for child care.
In February 2010, father engaged in bi-weekly physical therapy with R.J. and weekly early intervention. The social worker reported that father was attentive, interested and appropriately concerned with R.J.'s needs. By March, the social worker began receiving reports that father's home was messy and his progress handling R.J.'s special needs had declined. He had not obtained a domestic violence assessment and strongly maintained he did not need such counseling.
At a March 2010 concurrent planning meeting, father indicated he had not realized that taking R.J. was a permanent commitment. He believed he was to take R.J. only until mother completed her case plan. He indicated he felt overwhelmed and had a lot to think about. It was reported by several service providers that father had made statements regarding adoption that reflected his conflict. He was uncertain if it was the best choice for him to pursue R.J.'s placement. Father had stated, "'I am just going to keep going with this until I screw up.'" On March 31, father requested "a hold" on his weekly overnight visit with R.J. The therapeutic services that were previously provided in father's home on Thursday evenings and Friday mornings (following visitation) were moved to a concurrent foster adopt home. Mother had been incarcerated in County jail.
Father had also delayed completing the necessary paperwork to obtain benefits for his children. For over seven months, the department had repeatedly asked him to apply for Medi-Cal. He did so in April 2010 and was approved shortly afterward. The social worker had also asked father to complete an application to enroll in CalWorks to determine if he qualified for child care assistance. Father had not completed the application as of May.
To comply with the court-ordered "Wet and Reckless" program, father was required to take six education classes and attend five meetings. He had missed several classes. He was allegedly dismissed from the program, and there is conflicting evidence as to whether he had been reinstated. Father had not entered the Community Action Program (CAP) to attend parenting classes, as required by his case plan. He indicated he had left three voicemail messages with CAP, but had not received a return telephone call. Although the social worker had obtained information for other parenting resources, father had not contacted them.
Father was inconsistent with visitation. He agreed to participate in a weekly supervised visit which would include mother, as well as weekly unsupervised visits without mother present. Father missed five joint visitations because they would be "'too emotional.'" The social worker offered father an additional separate visitation with R.J., but he declined. He began missing his regularly scheduled unsupervised visits with R.J. The social worker indicated that father had worked toward case plan compliance at an extremely slow pace, disadvantaging R.J.'s need for permanency.
The department reported that R.J. became confused when father halted overnight visits, then failed to attend several of his weekly daytime visitations. It was the social worker's opinion that father's inability to commit to one overnight visit per week raised serious doubts as to his ability to commit to providing fulltime care for R.J.
In addition to the foregoing difficulties, father continued to struggle with the challenges posed by his son, Cody. It was reported that Cody had brought marijuana to school, stabbed another student with a pencil and had been truant. Father admitted having trouble controlling his son, but indicated no confrontational behavior was tolerated in the home.
Contested Six-Month Review Hearing
The juvenile court held a contested six-month review hearing on May 28, 2010. At the time of the hearing, R.J. was two years old. Father was unemployed. He testified that he felt he could now adequately parent R.J. He stated that he initially believed that his care of R.J. was a "temporary thing, " until mother completed her case plan. Father discontinued overnight visits when he discovered that R.J.'s placement with him could be permanent and he would have full custody. He needed to "get the pressure away... so [he] could make a clear decision."
The juvenile court indicated that it was unable to find it likely that R.J. could be returned to either parent by the 12-month date. It found, by a preponderance of the evidence, that returning R.J. to her parents would create a "substantial risk of detriment to her safety, protection, or physical or emotional well-being." The court described father's case plan compliance as "sketchy" and indicated that he had relied on mother to reunify with R.J., so did not comply fully with his case plan.
The court considered that, two months before the six-month hearing, father indicated he was overwhelmed with R.J.'s overnight visits and could not handle her special needs. The court acknowledged that he is a "caring, concerned father, " but found it was in R.J.'s best interest to terminate reunification services. It found by clear and convincing evidence that both parents failed to participate regularly and make substantive progress in their case plans. It determined that the case plans were reasonable and the services appropriate. On June 9, 2010, the juvenile court terminated reunification for both parents and set the matter for a section 366.26 hearing. The court authorized supervised visitation by father at the department's discretion.
The section 366.26 hearing is set for October 6, 2010. Father's request for a stay of that hearing is therefore denied.
Writ Petition
Father filed a petition for extraordinary writ review of the juvenile court's order terminating reunification. He stated in his petition that the juvenile court's findings were not supported by the evidence. He argues that he was not offered reasonable services and that his case plan requirements were unreasonable. Father also alleged that R.J. should have been placed with her siblings, who live with him, because he was the "non-offending parent." He claims that the department did not establish why R.J. could not have been placed with him, pursuant to section 306. Father asserted that terminating services violates the purpose of the dependency laws, and would be detrimental to R.J.
DISCUSSION
When a child has been removed from the physical custody of a parent, the juvenile court may order 12 months of reunification services. (§ 361.5, subd. (a)(1)(A).) If the child is under three years of age at the time of removal, the parents are entitled to only six months of services. (§ Id., subd. (a)(1)(B).) The court shall not return the child to parental custody if it finds, by a preponderance of the evidence, that the return of the child would "create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child." (§ 366.21, subd. (e).)
If the court finds by clear and convincing evidence that the parent failed to "participate regularly and make substantive progress in a court-ordered treatment plan, " it may set a section 366.26 hearing. (§ 366.21, subd. (e).) If, however, it finds that there is a substantial probability that the child may be returned within six months, or that reasonable services have not been provided, it must continue the case for the 12-month permanency hearing. (Ibid.)
To determine whether there is a "substantial probability" that the child may be returned within six months, the juvenile court must find that the parent has regularly visited the child; has made significant progress in resolving the problems that led to the child's removal; and 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." (§ 366.21, subd. (g)(1)(A)-(C).)
R.J. was removed from mother's home due to neglect. Although R.J. had never resided with father, he expressed a willingness to learn to accommodate her special needs and possibly take her into his home. The reality of that undertaking appears to have been overwhelming. Father was initially consistent in his visitation and demonstrated a willingness and ability to provide for R.J.'s special needs.
Father's progress in caring for R.J. began to decline. He was offered two overnight visits, but requested only one. He had believed he would have temporary custody of R.J. until mother completed her case plan. When he later learned placement would be permanent, he expressed uncertainty over whether he was making the right decision and discontinued overnight visits altogether. Father began missing his regularly scheduled visitation. He did not enroll in parenting classes, although provided with the resources to do so.
Father has not demonstrated the capacity and ability to complete the objectives of his treatment plan and to provide for the R.J.'s safety, protection, physical and emotional well-being, and her special needs. The juvenile court's finding that it would be detrimental to place R.J. in father's custody is supported by substantial evidence.
According to father, his case plan was unreasonable and services inadequate, but he does not specify the basis for either assertion. He was offered liberal visitation, parenting education, and training to enable him to meet R.J.'s special needs. Services were offered for drug and alcohol counseling, and it was determined that such treatment was unnecessary. Substantial evidence supports the juvenile court's finding that father's case plan was reasonable and the services appropriate.
We reject father's argument that R.J. should have been placed with her siblings. Where a child has siblings who are dependents of the court, it must review the efforts made for sibling visitation and placement. (See §§ 361.5, subd. (a)(1)(C); 366, subd. (a)(1)(D)(i); 366.21, subd. (e).) R.J.'s half-siblings were not dependents, so the court had no jurisdiction over them. Moreover, the court's overriding consideration was whether R.J. should be placed with father, not preservation of the sibling relationship.
Father also alleged that the minor should have been placed with him because he was the "non-offending parent, " pursuant to section 306. That section applies to temporary custody and placement issues at detention. Application of section 306 is irrelevant because jurisdiction was taken and the parties submitted on the dispositional orders, which included continued foster care and reunification services.
Section 306 describes circumstances under which a social worker may take a child into temporary custody. (Id., subd. (a).) Before doing so, the social worker must determine whether the child can remain safely at home. (Id., subd. (b).) This requires consideration of whether there are reasonable services available that would eliminate the need for removal (id., subd. (b)(1)) and whether a nonoffending caretaker can provide for and protect the child from abuse. (Id., subd. (b)(3).)
The dependency statutes require permanency for a child under three within a six-month period. While father's intentions were commendable, his desire to care for R.C. and his ability to gain the necessarily skills, were predicated on the belief that her placement with him would be temporary. When he discovered that he would have full custody, father expressed serious doubts about his ability to undertake such a responsibility and he ceased complying with his case plan. His testimony at the six-month hearing, that he was now ready to parent R.J., came too late in the reunification process.
DISPOSITION
The petition is denied.
We concur: GILBERT, P.J., PERREN, J.