T.C. v. Superior Court CA1/5

Filed 9/14/21 T.C. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
T.C.,
Petitioner,
v.
THE SUPERIOR COURT OF A162951
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. J2000558)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
In this writ proceeding, petitioner T.C. (“Father”) requests that this
court vacate the juvenile court’s June 24, 2021 order setting a Welfare and
Institutions Code section 366.261 permanency planning hearing on October
14. (See Cal. Rules of Court, rule 8.452.) He contends insufficient evidence
supports the court’s finding he failed to make “substantive progress” in his
case plan, as required to support setting the 366.26 hearing under
All undesignated statutory references are to the Welfare and
1
Institutions Code.
1
section 366.21, subdivision (e)(3). Father has not shown the juvenile court
erred.
The underlying juvenile dependency proceeding was initiated by an
October 2020 petition (“Petition”) filed by the Contra Costa County Children
and Family Services Bureau (the “Bureau”) alleging that Father’s daughter
R.C. (“Minor”), born April 2019, was within the jurisdiction of the juvenile
court under section 300. The Petition alleged Minor was at risk of serious
harm and neglect because of her parents’ substance abuse. The Bureau’s
detention/jurisdiction report explained that the Petition followed the
discovery of pieces of foil containing heroin residue strewn about the Minor’s
home, a spoon in the master bedroom containing heroin, and heroin
paraphernalia accessible to Minor and her half-siblings. In November 2020,
Father pled no contest to an allegation he had a serious substance abuse
problem that placed Minor at risk of serious harm and neglect.
Father’s court-ordered case plan required him to complete counseling,
parenting education, and an inpatient substance abuse treatment program,
as well as to refrain from drug use and to participate in random testing. In
the Bureau’s report for the six-month review hearing, the Bureau reported
that Father claimed to be participating in therapy, parenting education, and
outpatient substance abuse services. However, the Bureau’s social worker
was largely unable to verify Father’s participation in those services or the
extent of participation because Father failed to provide sufficient contact
information or the identified service providers failed to respond to the
worker’s inquiries. Furthermore, Father was not in an inpatient treatment
program, and Father had missed 24 drug tests. The Bureau recommended
termination of reunification services to both parents and the setting of a
section 366.26 permanency planning hearing.
2
At the June 24, 2021 contested six-month review hearing, Father’s
counsel stated, “I don’t have any additional evidence to present at this time,
but I would also object for the record. I think in the status review report it
does outline that my client has been working with the organization BAART,
on his substance abuse issues.” The juvenile court terminated reunification
services to both parents and set the matter for a section 366.26 hearing on
October 14. The present writ petition followed.
Father contends the juvenile court erred in setting the section 366.26
hearing because the evidence did not support the court’s finding under
section 366.21, subdivision (e)(3). That statute provides in relevant part, “If
the child was under three years of age on the date of the initial removal, . . .
and 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 hearing pursuant to Section 366.26
within 120 days.” We review the court’s order for substantial evidence.
(Fabian L. v. Superior Ct. (2013) 214 Cal.App.4th 1018, 1028.)2
Father contends the juvenile court “improperly shifted the burden to
[him] to prove he participated and made substantive progress in his case
plan.” At the outset, we observe Father cites no authority he was not
required to provide evidence of his participation in services. More
2 Although the juvenile court did not expressly make a finding in the
language of section 366.21, subdivision (e)(3), the court did expressly find
“the extent of progress which the father has made toward alleviating or
mitigating the causes necessitating placement in foster care is minimal.” In
any event, we may imply the section 366.21, subdivision (e)(3) finding in the
circumstances of the present case. (In re Aurora P. (2015) 241 Cal.App.4th
1142, 1166 [“Where the statute does not mandate explicit findings, and where
substantial evidence supports the juvenile court’s order, findings may be
implied.”].)
3
fundamentally, it is clear the juvenile court’s finding under section 366.21,
subdivision (e)(3), is supported by substantial evidence, even if this court
assumes the truth of Father’s claims he participated in some counseling,
parent education, and outpatient substance abuse treatment. It is
undisputed Father did not comply with the drug testing requirement or enter
inpatient treatment. Given that Father’s substance abuse was the basis for
the Petition, the juvenile court’s finding that Father “failed to participate
regularly and make substantive progress in” his treatment plan is amply
supported by the record. (§ 366.21, subd. (e)(3).)
DISPOSITION
The writ petition is denied.
SIMONS, J.
We concur.
JACKSON, P. J.
NEEDHAM, J.
(A162951)
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