Patrick H. v. Super. Ct. CA21/1

Filed 5/16/13 Patrick H. v. Super. Ct. CA21/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
PATRICK H., et al.,
Petitioners,
v.
SUPERIOR COURT OF MENDOCINO
COUNTY,
Respondent,
MENDOCINO COUNTY DEPARTMENT A137339
OF HEALTH AND HUMAN SERVICES
et al. (Mendocino County Super. Ct. No.
SCUK-JVSQ-11-16333-01)
Real Parties in Interest.
Patrick H. (Father) and Alicia E. (Mother) seek extraordinary relief from orders of
the Mendocino County Superior Court, Juvenile Division, entered November 26, 2012,
which terminated Father’s reunification services at the conclusion of the 12-month
permanency hearing, and set a hearing under Welfare and Institutions Code section
366.26 to select a permanent plan for their child A.H., born September 2010.1 Father
contends the juvenile court erred in terminating his services. Mother, whose services
were previously terminated, has submitted a petition that raises no arguably meritorious
issues. We conclude substantial evidence supports the finding underlying the termination
1
All further statutory references are to the Welfare and Institutions Code.
of Father’s services, and deny on the merits both Father’s and Mother’s petitions for
extraordinary writ.2
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts and earlier procedural history, to the point of the six-month review
hearing, are set out in detail in the Mother’s prior appeal from the dispositional orders
entered in December of 2011 (In re A.H. (Dec. 12, 2012, A134387) [nonpub. opn.]), and
in Mother’s second appeal—currently pending before this court—from orders entered at
the conclusion of the six-month hearing in June 2012 (In re A.H. (A135981).) At the
conclusion of the six-month review hearing on June 26, 2012, the juvenile court adhered
to the determinations of the Round Valley Tribal Council, expressed in a letter to the
court and resolutions, to decline to accept jurisdiction of the case and authorize alteration
of preferences mandated by the Indian Child Welfare Act (ICWA) to establish a long-
term guardianship of A.H. with “Talisha and Simon M.,” with the “understanding that no
adoption will be done.” The court also adopted the findings in the six-month review
report filed by the Mendocino County Health and Human Services Agency (the Agency).
Family reunification services to Mother were terminated; services to Father were
continued to the 12-month hearing, as were the parents’ visitation rights.
In July 2012, Father temporarily separated his living arrangement from the Mother
and relocated from Covelo to Ukiah. At his request his case plan was amended to specify
a transfer of some of his services from Yuki Trails to Consolidated Tribal Health.
The 12-month report, filed by the Agency on October 1, 2012, indicated that the
Father consistently engaged in unsupervised visitation with the child, and during the
visits demonstrated appropriate parenting skills. The child exhibited a strong attachment
to her Father during visitation. On one occasion, however, the child smelled of marijuana
following a visit with the Father. During another visit, he engaged in a heated argument
and yelled at the Mother in front of the child and others. The Father participated in a
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. (§ 366.26, subd. (l)(4)(B).)
2
weekly Family Empowerment Group, a parenting program, Alcoholics Anonymous
meetings, Men’s Anger Management classes, individual counseling through a therapist,
and completed some of his Life Skills classes.
According to the report, the Father’s compliance with random urine analyses by
the Agency has been inconsistent, partially due to transportation problems. He did not
test positive for drugs, but did not appear for testing on some occasions.
The Father improved his hygiene slightly but not satisfactorily, and submitted
housing applications, although he did not obtain any form of suitable housing for the
child. The report noted that in September of 2012, the Father resided with his brother –
who had a lengthy history of incarcerations – and the Mother. Despite continued
warnings from the Agency, the Father maintained a caretaking relationship with the
Mother that was antithetical to both himself and his prospects for reunification with the
child. He arranged visitation with the child for the Mother and transported her to her
visits with the child. He also acknowledged that he engaged in trimming and sale of
marijuana; the child’s clothes “smelled like marijuana” after a visit with him on
September 26, 2012.
In the report the Agency commended the Father for his regular, positive visitation
with the child, and his progress in participating in reunification services, but concluded
that he did not make significant progress in completing his case plan objectives or
resolving problems that resulted in the child’s removal from his custody. The Agency
found that despite the Father’s “good connection” with the child and his “good
intentions,” no substantial probability existed that he would reunite with her by the date
of the 18-month review. Termination of his reunification services and a section 366.26
hearing were recommended.
At the conclusion of this hearing on November 26, 2012, the juvenile court found
no substantial probability that the child would be returned to the physical custody of the
Father within 18 months of the initial removal, terminated Father’s services, and set the
matter for a hearing under section 366.26. Two hours of weekly visitation were granted
3
to the Father; no further visitation was granted to the Mother. Separate petitions filed by
Mother and Father followed. (§ 366.26, subd. (l).)
DISCUSSION
Mother’s Petition.
The Mother’s petition, while somewhat difficult to decipher, vaguely accuses the
Agency of “fraud,” asserts ineffective assistance of counsel due to lack of funds, claims
federal protection for her mental health disorder and drug use, discrimination and denial
of her equal protection rights on the basis of her mental disorder, cruel and unusual
punishment, and lack of notice. She requests cessation of violation of her rights and the
return of her child. Upon review of the record we conclude that Mother has not offered
any meritorious grounds in support of her petition. The juvenile court’s decision to
terminate her reunification services and schedule a section 366.26 hearing is supported by
overwhelming evidence of her failure to comply with reunification services.
Father’s Petition.
The Father’s petition challenges the juvenile court’s decision to terminate his
reunification services at the 12-month hearing and set a section 366.26 hearing. He
claims that he “demonstrated sufficient progress in his case plan” to warrant extension
and continuation of services to the 18-month hearing. The Father points out that he
complied with nearly all the objectives of his case plan, and made sufficient progress in
others – those being obtaining appropriate housing, and ending his “co-dependent
behavior patterns with the mother.” He therefore argues that the juvenile court “should
have continued his reunification services.”
“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.”3 (In re K.L. (2012) 210 Cal.App.4th 632, 636.)
3
The father does not complain in this petition that inadequate reunification services were
provided to him.
4
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
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.”4
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
4
In essentially identical terms, California Rules of Court, rule 5.710 (c)(1)(D)(i) states, with
respect to setting a section 366.26 hearing: “In order to find a substantial probability that the
child may be returned within the applicable time period, the court should consider the following
factors along with any other relevant evidence: [¶] a. Whether the parent or legal guardian has
consistently and regularly contacted and visited the child; [¶] b. Whether the parent or legal
guardian has made significant progress in resolving the problems that led to the removal of the
child; and [¶] c. Whether the parent or legal guardian has demonstrated the capacity and ability
to complete the objectives of the treatment plan and to provide for the child’s safety, protection,
physical and emotional health, and special needs.”
5
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 632,
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.)
Our review of the trial 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 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.) “Rather, as a reviewing court, we view the record in the
light most favorable to the judgment below and ‘ “decide if the evidence [in support of
the judgment] is reasonable, credible and of solid value—such that a reasonable trier of
fact could find that termination of parental rights is appropriate based on clear and
convincing evidence. [Citation.]” ’ [Citations.]” (In re Jasmon O. (1994) 8 Cal.4th 398,
423.) As an appellate court, in the presence of substantial evidence, we do not reweigh
conflicting evidence and alter a dependency court determination. (Constance K. v.
Superior Court (1998) 61 Cal.App.4th 689, 705.)
We agree with the Father that he consistently engaged in positive visitation with
the child, and complied with some aspects of his case plan, as the Agency’s report
6
recognized. Given our limited reviewing function, however, 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 the Father by the 18-month deadline. The Father
made some, but not definitive or significant progress in resolving problems that led to the
child’s removal from the home. He did not 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 166, 177–178.) He did not obtain satisfactory
housing for the child, he made minimal progress with improving his hygiene and
organizational skills, and most importantly he continued his chaotic, volatile relationship
with the Mother that was patently adverse to the safety and welfare interests of the child.
The record justifies the Agency’s recommendations and the juvenile court’s findings.
DISPOSITION
The petitions for extraordinary writ are denied on the merits and both requests for
stay are 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 Ct., rules 8.452(i), 8.490(b)(3).)
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Banke, J.
7