Filed 3/5/13 Robert M. v. Superior Court CA5



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

ROBERT M.,
                   Petitioner,
                                                                                       F066375
         v.
                                                                        (Super. Ct. No. JD126056-00)
THE SUPERIOR COURT OF KERN
COUNTY,
                                                                                   OPINION
                   Respondent;

KERN COUNTY DEPARTMENT OF
HUMAN SERVICES,

                   Real Party in Interest.


                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jon E.
Stuebbe, Judge.
         Robert M., in pro. per., for Petitioner.
         No appearance for Respondent.
         Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Real Party in Interest.
                                                        -ooOoo-


        Before Wiseman, Acting P.J., Kane, J., and Peña, J.
       Robert M. in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule
8.452) from the juvenile court’s orders terminating his reunification services at a
contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f))1 and setting
a section 366.26 hearing as to his six-year-old son, Dylan. He contends the juvenile court
violated his rights under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101
et seq.). Alternatively, he contends the juvenile court erred in finding there was not a
substantial probability Dylan could be returned to his custody. We disagree and deny the
petition.
                     FACTUAL AND PROCEDURAL SUMMARY
       Robert and his girlfriend, Alicia,2 are the parents of Dylan, the subject of this writ
petition. In February 2011, sheriff’s deputies responded to a report of domestic violence
at the family residence and found Robert and Alicia under the influence of
methamphetamine and Alicia complaining of neck pain. She said Robert hit her several
times in the back of the head. Alicia was transported to the hospital, Robert was arrested,
and then four-year-old Dylan and his eight-year-old half brother Johnny were taken into
protective custody by the Kern County Department of Human Services (department).
They were placed together in foster care.
       In April 2011, the juvenile court exercised its dependency jurisdiction pursuant to
an original petition (§ 300, subd. (b)), ordered the children removed from parental
custody, and ordered reunification services for Alicia as to Dylan and Johnny, and for
Robert as to Dylan. Robert and Alicia’s services plans required them to participate in
domestic violence and substance abuse counseling and submit to random drug testing.


1      All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2      Alicia did not file a writ petition.


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The juvenile court did not offer reunification services to Johnny’s alleged father. The
juvenile court set the six-month review hearing for September 2011, though it was
continued until November.
       Meanwhile, Robert and Alicia separated and were both doing well in their services
plans; however, Robert began what the juvenile court would later characterize as a
“campaign” to discredit Alicia. In August 2011, social worker Grace Abaya visited
Robert at his home. He took the opportunity to tell her that Alicia was using drugs and
had a drug-addicted boyfriend. Abaya told Robert that she could not discuss Alicia’s
case with him and told him he needed to focus on himself and his efforts to reunify with
Dylan. According to Abaya, “Robert kept going on and on about Alicia” and she had to
interrupt him to tell him not to worry about her. In addition, Robert made increasing
demands for more time with Dylan and accused the department of treating him unfairly in
relation to Alicia. In its report for the six-month review hearing, the department advised
the juvenile court that Robert appeared to be attempting to exert control over Alicia
through Dylan, and stated it was not yet ready to recommend family maintenance
services for either parent.
       In November 2011, at the six-month review hearing, the juvenile court continued
reunification services for Robert and Alicia to the 12-month review hearing, which it
scheduled in March 2012. It was continued and ultimately conducted as to Robert in
December 2012.
       In the interim, Robert’s preoccupation with Alicia intensified, particularly as it
related to her boyfriend, David. Robert enlisted the assistance of his two ex-wives,
Michelle and Robin, to track Alicia and her activities. Michelle lived in Alicia’s
neighborhood. She videotaped Alicia and followed her in her car. Robin lived in
Georgia. While researching Alicia and David’s names on the Internet, she discovered
that Alicia was scheduled to appear in Ridgecrest for a hearing on a petition for a

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restraining order filed by David. Robin informed Robert who with his girlfriend,
Rosemary, traveled to attend the hearing. They sat in the courtroom until the case was
called and dismissed. All the while, Alicia had a restraining order against Robert
prohibiting him from being within 100 yards of her. Robin also filed a complaint with a
state agency against the veterinarian who employed Alicia. As a result, the veterinarian
was investigated for violations.
       In April 2012, the department filed a petition under section 388 asking the juvenile
court to order a psychological evaluation for Robert in light of his behavior and
information the department received that Robert had previously been diagnosed with
obsessive compulsive disorder, depression, and bipolar disorder. The juvenile court set a
hearing on the section 388 petition for April 2012.
       In May 2012, the juvenile court conducted the 12-month review hearing as to
Alicia and ordered the children placed with her under family maintenance. As part of her
family maintenance plan, Alicia was required to submit to monthly random drug testing.
The juvenile court continued the 12-month reviewing hearing as to Robert and the section
388 hearing (combined hearing) to May 2012.
       The combined hearing was continued and convened in June 2012. After hearing
testimony, the juvenile court granted the section 388 petition and appointed psychologist
Dr. Eugene T. Couture to evaluate Robert. The juvenile court also continued the 12-
month review hearing to August 2012. The 12-month review hearing was continued
multiple times and conducted as a contested hearing in December 2012.
       Meanwhile, in July 2012, Dr. Couture evaluated Robert and diagnosed him with
bipolar I disorder. During the evaluation, Dr. Couture ascertained that Robert had been
treated for the disorder since the 1990’s and was receiving appropriate medical treatment
for it. Nevertheless, Dr. Couture opined that Robert was either still symptomatic or also
had a personality disorder. Further, he opined that Robert presented a continuing danger

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to Dylan, even with treatment, and that the juvenile court should cease any effort to
reunite them.
       In October 2012, the department filed a non-custody supplemental petition (§ 387)
asking the juvenile court to detain Dylan and Johnny because Alicia had stopped drug
testing and her live-in boyfriend, Joseph, threw a porcelain plate at her striking her in the
arm, and threatened to kill her. It was also reported that Alicia appeared to be under the
influence of drugs.
       Alicia explained that she had not drug tested because she was undergoing
chemotherapy for thyroid cancer and that the chemotherapy impaired her memory and
caused bladder infections, which prevented her from producing a urine sample. She
attributed any irregularities in her speech and coordination to her thyroid tumor.
       In December 2012, the juvenile court convened a contested dispositional hearing
as to Alicia on the supplemental petition and the 12-month review hearing as to Robert
on the original petition. The department’s recommendations to the juvenile court were to
terminate reunification services for both parents and set a section 366.26 hearing as to
Dylan and Johnny who, by this time, had been placed with a non-related extended family
member. By the time of the hearing, Robert had consistently tested negative for drugs
and completed an outpatient substance abuse program and domestic violence counseling.
       The juvenile court first adjudicated the supplemental petition. Alicia testified
about her cancer diagnosis and the effects of chemotherapy on her comportment. She
also testified that she missed drug tests because her testing number was changed without
her knowledge. As it turned out, her testimony was perjured and she did not have cancer.
Following a continuance and further argument, the juvenile court sustained the
supplemental petition and terminated Alicia’s reunification services.
       The juvenile court then proceeded to adjudicate the 12-month review hearing as to
Robert. Dr. Couture testified and described bipolar I disorder and how it manifests

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behaviorally. He also testified why it would be inherently dangerous to the minor child
of a parent suffering from the disorder. In Robert’s case, Dr. Couture stated, “I don’t
think he can control himself in a sufficient manner to be entrusted with the care of his
son. It’s that simple.” At no time during the hearing did Robert’s attorney raise an issue
with respect to the Americans with Disabilities Act.
       At the conclusion of the hearing, the juvenile court found that Robert’s efforts to
resolve the situation requiring Dylan’s removal had been minimal. The juvenile court
also found that it would be detrimental to return Dylan to Robert’s custody and that there
was not a substantial probability Dylan could be returned to him with continuing services.
Consequently, the juvenile court terminated Robert’s reunification services and set a
section 366.26 hearing.
       Robert filed a writ petition and appeared for oral argument. At oral argument, he
raised issues not raised in his petition. Since we do not address issues raised for the first
time at oral argument, we will not address them. (See People v. Harris (1992) 10
Cal.App.4th 672, 686.) Rather, we confine our review to the issues raised in the petition.
                                       DISCUSSION
I.     Americans with Disabilities Act
       Robert contends that bipolar I disorder is a protected disability under the
Americans with Disabilities Act (ADA). Therefore, he further contends the juvenile
court violated his rights under the ADA by terminating his reunification services based
on his disorder. Because Robert raises this issue for the first time on appeal, it is not
properly before us. (In re M.S. (2009) 174 Cal.App.4th 1241, 1252.)
       In any event, “the ADA does not directly apply to juvenile dependency
proceedings and cannot be used as a defense in them.” (In re Diamond H. (2000) 82
Cal.App.4th 1127, 1139, overruled on another ground as stated in Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 748, fn. 6.) Consequently, even if Robert had preserved the

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issue, the ADA is not a proper basis for challenging the juvenile court’s order terminating
his reunification services.
II.     Detrimental Return
        Robert contends that he fully complied with his services plan. In light of his
request that the juvenile court be directed to return Dylan to his custody, his contention
could be liberally construed as a challenge to the juvenile court’s finding that returning
Dylan to Robert would place Dylan at a substantial risk of detriment. We will so
construe it.
        At each review hearing, there is a statutory presumption that the child will be
returned to parental custody unless the juvenile court finds, by a preponderance of the
evidence, that the return of the child would create a substantial risk of detriment to the
child’s safety, protection or well-being. (§§ 366.21, subds. (e) & (f); 366.22, subd. (a).)
In assessing the risk of detriment, the juvenile court considers the extent to which the
parent participated and made progress in the court-ordered treatment plan. (§§ 366.21,
subds. (e) & (f); 366.22, subd. (a).) However, ultimately, the court’s decision hinges on
whether the child would be safe in parental custody. (In re Dustin R. (1997) 54
Cal.App.4th 1131, 1141-1142.)
        On a challenge to the sufficiency of the evidence to support the juvenile court’s
finding, the question is not whether the juvenile court could have made a contrary
finding, but whether the finding it made is supported by substantial evidence. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.) On the facts of this record, we conclude
that it is.
        In this case, Dr. Couture testified that Robert’s sense of entitlement without
bounds made him inherently dangerous and the record supports his opinion. Robert’s
completion of his services plan does not diminish that danger or otherwise make him a



                                              7
safe parent. Thus, the juvenile court properly ruled in not returning Dylan to Robert’s
custody.
III.   Substantial Probability of Return
       Robert’s contention that he fully complied with his services plan could also be
construed as challenging the juvenile court’s finding there was not a substantial
probability of return. If the juvenile court finds there is a substantial probability that the
child can be returned to parental custody and safely maintained in the home, the juvenile
court can continue services beyond 12 months.3 (§§ 361.5, subd. (a)(3); 366.21, subd.
(g)(1).)
       One of the factors the juvenile court must affirmatively find in assessing the
probability of return is whether the parent demonstrated the capacity and ability to
complete the objectives of his or her treatment plan. (§ 366.21, subd. (g)(1)(C).)
However, the juvenile court must also find that the parent “demonstrated the capacity and
ability … to provide for the child’s safety, protection, physical and emotional well-being,
and special needs.” (Ibid.)
       Here, even though Robert completed the technical requirements of his services
plan, there was substantial evidence that returning Dylan to his custody would endanger
Dylan. Further, there was no evidence that extending Robert’s services would change the
situation. Thus, the juvenile court properly found there was not a substantial probability



3       Technically, the juvenile court in this case would have also been required to find
that it was in Dylan’s best interest in order to continue services. That is so because
Robert had already received in excess of 18 months of services when the juvenile court
conducted the 12-month review hearing in December 2012. Under the statute, the
juvenile court can extend reunification services up to 18 months from the date the child is
originally removed from the parent’s physical custody. (§ 361.5, subd. (a)(3).) Since
Dylan was originally removed from Robert’s physical custody in February 2011, August
2012 marked 18 months of reunification.


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of return and properly ruled in terminating Robert’s reunification services and setting a
section 366.26 hearing.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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