ANTONIO v. MERCED COUNTY HUMAN SERVICES AGENCY (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at a contested 12–month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to his son M.² We will deny the petition.

STATEMENT OF THE CASE AND FACTS

These dependency proceedings were initiated in October 2009, when then 12–year–old M. disclosed that his older siblings gave him marijuana.   At the time of M.'s disclosure, petitioner and M.'s mother (the mother) were separated and shared custody of M. However, M. and his five siblings lived in petitioner's home.   The siblings consisted of M.'s 31–year–old brother, L., his 17–year–old brother, and his three sisters ranging in age from 11 to 23.   In addition, there was a temporary family court order that neither parent enforced prohibiting M.'s older siblings from living with him.   The mother stated she did not enforce the order because she and petitioner had a violent relationship and she was afraid of him.   Petitioner said he did not enforce it because he did not believe that anyone was using drugs in his home or giving drugs to M. However, petitioner submitted to drug testing and tested positive for methamphetamine and codeine.

In addition to exposing M. to drugs, petitioner and the mother were neglecting his medical, dental and nutritional needs.   Specifically, they were aware that M. suffers from encopresis,³ but neither took him to be medically evaluated for it.   The mother stated that it only occurred when M. was upset or scared.   Petitioner attributed it to laziness.   M. also had an untreated dental problem which was causing him pain, and had gone without free breakfast and lunch at school for a week because petitioner and the mother did not complete the paperwork.

The juvenile court exercised its dependency jurisdiction, ordered M. placed in the care and custody of the Merced County Human Services Agency (agency), and ordered petitioner and the mother to participate in reunification services.   Petitioner's services plan required him to comply with the family court order, to complete a parenting program, submit to random drug testing, and enter an outpatient substance abuse treatment program.   The agency placed M. in foster care.

Over the following year, petitioner and the mother received reunification services.   During that time, petitioner completed a course in parenting and a 20–week alcohol and drug education program.   He also tested negative for drugs and enjoyed regular and positive visitation with M. However, he denied that he or his older children ever had a substance abuse problem.   In addition, the older children continued to live with him.   The mother, meanwhile, was unable to maintain steady employment and housing and had difficulty engaging M. during visitation.

In its report for the 12–month review hearing (review hearing), the agency recommended the court find that petitioner and the mother made minimal progress in their reunification services.   The agency also recommended the court terminate their reunification services and set a section 366.26 hearing to implement a permanent plan.   The agency also informed the court that the concur

rent plan was to place M. with his paternal uncle.

In March 2011, the juvenile court conducted a contested 12–month review hearing.   By that time, M. was living with his paternal uncle and reported that he liked living with his aunt and uncle and was comfortable and happy at school.   In addition, M.'s paternal uncle had agreed to assume legal guardianship over M.M. was also amenable to the guardianship, but did not want his parents' parental rights terminated.   The agency recommended that the court adopt a plan of legal guardianship and dismiss dependency.

Petitioner appeared at the review hearing represented by counsel and assisted by a Spanish language interpreter.   He testified that L. was still living in his home, but that there were plans for L. to move out in early April 2011.   He said that L. was still living with him because L. was not able to find work.

Following testimony, petitioner's attorney argued that petitioner completed his reunification plan with the exception of forcing L. to leave.   He asked the court to continue services to the 18–month review hearing to give L. time to move out of the home.   Minor's counsel relayed M.'s opinion that it would be best for him to live with his aunt and uncle.

At the conclusion of the hearing, the juvenile court found that it would be detrimental to return M. to the custody of either parent.   The court also elected not to continue reunification services, stating that L.'s continued presence in the home reflected petitioner's lack of appreciation for the seriousness of the situation and failure to take appropriate and timely action to remedy the problem.   Consequently, the court terminated reunification services for petitioner and the mother and set a section 366.26 hearing.   This petition ensued.

DISCUSSION

Petitioner contends he completed his court-ordered services and L. has moved out of state.   Therefore, he argues, in essence, the juvenile court erred in finding it would be detrimental to return M. to his custody.   We disagree.

Once a juvenile court exercises its dependency jurisdiction over a minor child, it must determine at each review hearing whether the child can be safely returned to parental custody or whether to do so would expose the child to a risk of detriment. (§§ 366.21, subds.(e) & (f);  366.22, subd. (a).)  A parent's failure to regularly participate and make substantive progress in a court-ordered plan of reunification constitutes prima facie evidence of detriment.  (Ibid.) However, detriment can be found even where a parent has been compliant.  (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141–1142.)   The ultimate question is whether the child would be safe in parental custody.   (Ibid.)

On appeal, we determine whether substantial evidence supports the juvenile court's finding of detriment.  (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)   On the facts of this record, we conclude that it does.

The detriment in this case stems from petitioner's denial about the risk M.'s older siblings posed to M.'s safety and petitioner's refusal to protect M. Indeed, his violation of the family court order prohibiting the older siblings from living with M. resulted in M.'s removal.   Even then, petitioner continued to allow the older siblings to live in his home knowing that their presence prevented M. from returning to his custody.   As late as the 12–month review hearing, petitioner's oldest son L. was still living with him.

As explained above, petitioner's compliance with his court-ordered services is just one factor the juvenile court considered in deciding whether M. could be safely returned to petitioner's custody.   The court also properly considered the fact that the source of detriment (i.e., an older sibling in the home) remained despite 12 months of services.   Further, while it may be true that L. has since moved out, we review the evidence that was before the juvenile court at the time it rendered its decision.  (In re Zeth S. (2003) 31 Cal.4th 396, 405.)   When the juvenile court found it would be detrimental to return M. to petitioner's custody, L. was still in the home.

We conclude substantial evidence supported the juvenile court's finding of detriment and its decision not to return M. to petitioner's custody.   Accordingly, we will deny the petition.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. In order to protect the privacy of the minor, we refer to individuals with unique names by their first initial.  (Cal. Rules of Court, rule 8.401(a)(2).).  FN2. In order to protect the privacy of the minor, we refer to individuals with unique names by their first initial.  (Cal. Rules of Court, rule 8.401(a)(2).)

FN3. Encopresis is the soiling of the underwear with stool by children who are past the age of toilet training..  FN3. Encopresis is the soiling of the underwear with stool by children who are past the age of toilet training.