E.People v. Superior Court CA5

Filed 1/19/22 E.P. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
E.P.,
F083544
Petitioner,
(Super. Ct. No. 21JP-00007-A)
v.
THE SUPERIOR COURT OF MERCED OPINION
COUNTY,
Respondent;
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian L.
McCabe, Judge.
E.P., in, pro. per., for Petitioner.
No appearance for Respondent.
Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.
Edward P. (father) and S.P. (mother) are an unmarried, intact couple and the
parents of now 11-month-old C.P., the subject of this extraordinary writ petition. At a
six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1))1 in November
2021, the juvenile court terminated reunification services and set a section 366.26 hearing
for March 3, 2022. Father, in propria persona, seeks an extraordinary writ directing the
juvenile court to stay the section 366.26 hearing and either return C.P. to his custody and
terminate dependency or continue reunification efforts.2 We conclude father failed to set
forth a claim of juvenile court error as required by California Rules of Court, rules
8.450−8.452.3 Consequently, we deny father’s request for a stay of the section 366.26
hearing and dismiss the petition.
PROCEDURAL AND FACTUAL SUMMARY
In January 2021, the Merced County Human Services Agency (agency) was
contacted regarding newborn C.P. Although mother and C.P. tested negative for drugs
and were doing well, the reporting party was concerned the parents’ drug abuse and
chronic homelessness placed C.P. at risk of harm and neglect. The parents had an active
dependency case regarding C.P.’s sibling who was detained in August 2019 after the
parents’ unsuccessful attempt to treat their methamphetamine use through voluntary
family maintenance services. The parents were provided family reunification services
but failed to reunify and a section 366.26 hearing was then set for February 24, 2021.
Mother also had a nine-year-old child who was in a permanent legal guardianship with
the maternal grandmother because of mother’s methamphetamine abuse and domestic
violence with the child’s father.
1 Statutory references are to the Welfare and Institutions Code.
2 Mother also filed an extraordinary writ petition, which is pending review in our
case No. F083545.
3 Rule references are to the California Rules of Court.
2.
Mother told the investigating social worker she had made significant changes in
her life in the previous several months. She and father secured stable housing in
October 2020. She stopped using methamphetamine in June 2020 when she found out
she was pregnant, but relapsed several times between July and November of 2020. She
attributed her drug use to homelessness. Having stable housing helped her attain sobriety
in November 2020. She began substance abuse treatment through Merced County
Behavioral Health and Recovery Services in November 2020 and had her first
appointment in December 2020. She attended weekly group and individual sessions and
participated in random drug testing. In December 2020, she started weekly counseling
sessions through Valley Crisis Center.
Father gave the social worker a tour of the family home which was clean and
appropriately furnished. The parents had a bedroom prepared for C.P. with everything
needed for a newborn. Father was employed by two different construction contractors.
He said he used methamphetamine over a month before and struggled to maintain
sobriety. He initiated services with Behavioral Health and Recovery Services in
January 2021, but was unable to consistently participate because of his work schedule.
C.P. was taken into protective custody and placed with a relative. The agency
determined that voluntary family maintenance services were not a viable option and filed
a dependency petition seeking C.P.’s removal under section 300, subdivisions (b)(1)
(failure to protect) and (j) (abuse of sibling).
The juvenile court ordered C.P. detained and set a jurisdictional hearing for
February 25, 2021. In its report for the hearing, the agency informed the juvenile court
the parents were involved in a domestic violence incident in September 2020 in a hospital
parking lot. Father was observed chasing mother and heard yelling, “ ‘Come here,
f****** bit**!’ ” The witness saw father’s hand raised but could not tell if he struck
mother because they were behind tall bushes. A sheriff’s deputy filed misdemeanor
charges against father.
3.
On February 25, 2021, the juvenile court set a contested jurisdictional hearing for
March 24, 2021. Meanwhile, the agency filed its dispositional report, recommending the
juvenile court provide the parents reunification services despite their failure to resolve
their drug problem and positive results for methamphetamine in early March 2021. The
proposed reunification plan required the parents to participate in substance abuse
treatment and parenting classes, father to complete a program in anger management and
mother a program in domestic violence.
On March 23, 2021, at the readiness hearing, the parents waived their right to a
contested jurisdictional hearing, denied the allegations and submitted the matter for the
court’s ruling. The juvenile court sustained the petition, adjudged C.P. a dependent child
as alleged, removed her from parental custody and ordered the parents to complete the
proposed services. The court advised the parents that failure to participate regularly in
court-ordered treatment or to cooperate and avail themselves of services could result in
termination of reunification efforts after six months for good cause. The court vacated
the March 24 contested hearing and set an interim review hearing for May 27, 2021, and
a six-month review hearing for September 9, 2021.
On May 25, 2021, the juvenile court terminated parental rights in the sibling’s
case.4
The parents appeared at the May 27, 2021 interim review hearing. County counsel
informed the juvenile court the parents visited C.P. weekly and visits generally went well
except that mother occasionally appeared emotional, and father appeared to be falling
asleep. They were participating in services but continued to test positive for
methamphetamine. On one occasion, they provided a questionable urine sample and
4 The parents appealed the juvenile court’s termination order and we reversed,
directing the juvenile court to conduct a new section 366.26 hearing and reconsider its
application of the beneficial parent-child relationship exception in light of In re Caden C.
(2021) 11 Cal.5th 614. (In re D.P. (Jan. 12, 2022, F083084) [nonpub. opn.].)
4.
declined to provide another sample. The court encouraged the parents to continue their
efforts and to seek assistance from the social worker if they needed help with their drug
use.
The agency recommended the juvenile court terminate the parents’ reunification
services at the six-month review hearing. Although mother completed the domestic
violence program, she was unable to articulate the cycle of domestic violence or
formulate a safety plan. She completed a parenting class, but displayed odd behavior
during visits and appeared to be under the influence of drugs. Her speech was rapid, she
cried excessively, and she dozed off while holding C.P. From March through August
2021, she either tested positive for methamphetamine, provided urine samples that did
not appear to be urine or failed to test. On two occasions in July, she tested negative.
Father’s drug test results were the same as mother’s results. He attended 14 sessions of a
52-week anger management program but was placed on hold because of excessive missed
sessions. He was attending a weekly parenting class. During visits, he fell asleep and
used his phone excessively. In addition, the parents had a pattern of avoiding the case
worker by not responding to her telephone calls and text messages.
The six-month review hearing was continued and conducted as a contested hearing
on November 9, 2021. Meanwhile, the agency received a letter stating father completed
the nurturing parenting substance use treatment and recovery classes.
County counsel made an offer of proof at the contested hearing that if called, the
social worker would testify that the parents had not drug tested the five times they were
requested to do so in September and October of 2021.
Father’s attorney made an offer of proof that father accomplished enough to merit
continuing his reunification services. Father did not dispute missing the last five drug
tests but tested in July with negative results. He also attended parenting and anger
management classes. He asked the court not to terminate his reunification services. He
5.
believed there was a likelihood he could successfully complete services if given the
chance. He wanted very much to reunify with C.P. and asked the court for that chance.
Mother’s offer of proof also stressed her accomplishments and included a request
for continued services. She cited her certificates for positive discipline and nurturing
parenting classes. She admitted struggling with substance abuse issues and testing
positive for drugs a number of times but also participated in substance abuse treatment
and tested negative for drugs in July. Like father, she wanted the opportunity to continue
her efforts to reunify with C.P.
The juvenile court terminated reunification services and set the
section 366.26 hearing. It found it would be detrimental to return C.P. to the parents’
custody. It also found by clear and convincing evidence the agency provided them
reasonable reunification services, but they failed to participate regularly and make
substantive progress in a court-ordered treatment plan. In ruling, the court noted that
February 25, 2022, would mark “the 12-month period.”5 Given the parents’ history, the
court could not find there was a substantial likelihood C.P. would be returned to their
custody by that time with continued services.
5 The juvenile court’s “12-month period” refers to the limit on reunification services
for a child who was under three years of age when initially removed. By our calculation,
however, March 23, 2022, marks the 12-month period. Reunification services for a child
such as C.P. who was under the age of three when initially removed from parental
custody are provided for six months from the dispositional hearing but no more than
12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) A child
is deemed to have entered foster care on the earlier of the date of the jurisdictional
hearing or the date that is 60 days after the date on which the child was initially removed
from parental custody. (§ 361.49.) C.P. was initially removed on January 28, 2021. The
jurisdiction and disposition hearings were conducted on March 23, 2021. Sixty days
from C.P.’s initial removal was March 28, 2021. The juvenile court was therefore
authorized to provide the parents reunification services up to September 23, 2021 (six
months from the dispositional hearing), but no longer than March 23, 2022 (a year from
March 23, 2021, the earlier date).
6.
DISCUSSION
Father disagrees with the juvenile court’s decision to terminate his reunification
services. He asserts he has maintained a stable home since October 2020 where he can
provide C.P. a safe, secure home with a room of her own. He is working to better himself
every day. He acknowledges he struggles daily with his sobriety but will strive to remain
sober so that he can reunify with his family.
Relevant Legal Principles and Standard of Review
California’s dependency system is designed “to protect children from harm and to
preserve families when safe for the child.” (Tracy J. v. Superior Court (2012) 202
Cal.App.4th 1415, 1424.) During the reunification period of a dependency case, the
primary focus is on preserving the family by addressing the issues that led to dependency
jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means
until reunification services have been terminated, “family reunification is the goal and the
parent is entitled to every presumption in favor of returning the child to parental
custody.” (Tracy J., at p. 1424.) Once reunification services are terminated, however,
the focus shifts to finding the child a safe and permanent home. (Ibid.)
“When a child is removed from a parent’s custody, the juvenile court ordinarily
must order child welfare services for the minor and the parent for the purpose of
facilitating reunification of the family.” (Tonya M. v. Superior Court (2007) 42 Cal.4th
836, 843.) The duration of services depends on the age of the child when initially
removed. (§ 361.5, subd. (a)(1).) Court-ordered services must be provided for
six months from the dispositional hearing to the parents of a child who was under
three years of age when initially removed. (§ 361.5, subd. (a)(1)(B).) The court must
advise the parent that reunification services may be terminated after six months if the
parent fails to participate regularly in any court-ordered treatment programs or to
cooperate or avail him or herself of services provided. (§ 361.5, subd. (a)(3)(C).)
7.
The child’s status, and the question of whether services should be extended for an
additional period, must be reconsidered no less frequently than every six months. (§ 366,
subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009.)
At each review hearing, “there is a statutory presumption that the child will be
returned to parental custody.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court,
therefore, must return the child to parental custody at the six-month review hearing unless
it finds by a preponderance of the evidence that doing so would “create a substantial risk
of detriment to the safety, protection, or physical or emotional well-being of the child.”
(§ 366.21, subd. (e)(1).) A parent’s failure to participate regularly and make substantive
progress in court-ordered treatment programs constitutes prima facie evidence that return
would be detrimental. (§ 366.21, subd. (e)(1).)
If the child is not returned to parental custody, the juvenile court is required to
determine whether “reasonable services that were designed to aid the parent … in
overcoming the problems that led to the initial removal and the continued custody of the
child have been provided or offered to the parent.” (§§ 366.21, subds. (e)(8) & (f)(1)(A),
366.22, subd. (a)(1).) “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, the court may schedule a [section 366.26 hearing].” (§ 366.21,
subd. (e)(3).) The court, however, is not compelled to terminate reunification services
and set a section 366.26 hearing if it makes the requisite findings. It simply has the
discretion to do so. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 176.) If,
however, “the court finds there is a substantial probability that the child … may be
returned to his or her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to the
12-month permanency [review] hearing.” (§ 366.21, subd. (e)(3).)
We review for substantial evidence a court’s factual findings supporting an order
terminating reunification services at a six-month review hearing. (Kevin R. v. Superior
8.
Court (2010) 191 Cal.App.4th 676, 688.) Under this standard, “we review the record in
the light most favorable to the court’s determinations and draw all reasonable inferences
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.’ ” (Id. at pp. 688−689.) When examining
the evidence supporting the trial court’s findings, we “bear in mind that clear and
convincing evidence was required in the trial court.” (T.J. v. Superior Court (2018) 21
Cal.App.5th 1229, 1239.)
The Extraordinary Writ Petition
When the juvenile court terminates reunification services and sets a
section 366.26 hearing, as occurred here, the parent may challenge the court’s rulings by
filing an extraordinary writ petition. Rules 8.450−8.452 set forth guidelines pertaining to
extraordinary writ petitions. The purpose of these writ petitions is to allow the appellate
court to achieve a substantive and meritorious review of the juvenile court’s orders and
findings issued at the setting hearing in advance of the section 366.26 hearing. (§ 366.26,
subd. (l)(4).)
“ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) It is appellant’s burden to raise claims of reversible error or other defect and
present legal argument, citing to the pertinent evidence in the record. (In re Sade C.
(1996) 13 Cal.4th 952, 994.)
Father does not challenge any of the rulings that resulted in C.P.’s continued
placement out of parental custody, the termination of reunification services and the
setting of a section 366.26 hearing. Specifically, he does not claim there was insufficient
evidence to support the juvenile court’s finding it would be detrimental to return C.P. to
his custody, that he was provided reasonable reunification services and that there was not
9.
a substantial probability C.P. could be placed in his home by the 12-month review
hearing. Consequently, he failed to raise a claim of reversible error. Therefore, his
petition does not comply with rules 8.450−8.452 and is inadequate for appellate review.
Even if we were to independently review the record for possible error, we would
affirm the juvenile court’s rulings. C.P. was removed from the parents mainly because of
their unresolved methamphetamine abuse. They had recently failed to reunify with
C.P.’s sibling because of their drug use. In addition, mother had already lost custody of
another child to a legal guardianship because of her drug use. Nevertheless, the juvenile
court gave the parents an opportunity to reunify with C.P. by providing them drug
treatment as well as services to address their domestic violence. However, they
continued to use methamphetamine and made minimal overall progress in completing
their case plan requirements. On that evidence, the juvenile court properly found C.P.
could not be returned to the parents’ custody without subjecting her to a substantial risk
of detriment. Further given the parents’ lack of progress up to that point, there was no
reason for the juvenile court to believe they could safely parent C.P. in the time
remaining before the juvenile court would conduct a 12-month review hearing. Our
calculation that the 12-month period would fall on March 23 rather than February 25,
2022 (see fn. 4), does not change our opinion.
We conclude father failed to comply with rules 8.450−8.452 and for that reason
dismiss his writ petition. We also deny his request for a stay of the section 366.26
hearing.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is final forthwith as
to this court pursuant to rule 8.490(b)(2)(A). The request for a stay of the section 366.26
hearing is denied.
10.