Filed 8/27/13 J.K. v. Super. Ct. CA5

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

 J.K.,
                                                                                            F067491
          Petitioner,
                                                                                (Super. Ct. No. JP000639)
                    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.
          J.K., in pro. per., for Petitioner.
          No appearance for Respondent.
          James N. Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel,
 for Real Party in Interest.
                                                         -ooOoo-




 *        Before Kane, Acting P.J., Detjen, J. and Franson, J.
                                      INTRODUCTION
       Petitioner, J.K. (mother), filed an extraordinary writ petition (Cal. Rules of Court,
rule 8.452)1 in propria persona regarding her minor children, H.K. and S.K. (collectively
“the minors”). Mother seeks relief from the juvenile court’s order issued at the status
review hearing setting a Welfare and Institutions Code section 366.26 hearing.2 We will
deny the petition.
                  FACTUAL AND PROCEDURAL BACKGROUND
       A section 300 juvenile dependency petition regarding the minors was filed August
9, 2012. The next day the juvenile court conducted a detention hearing at which it found
that allowing the minors to remain in the home of the parents would be contrary to their
welfare and ordered that temporary placement and care of the minors be vested in the
Merced County Human Services Agency (agency). At the time of this order, the minors
were age 4 and age 2, respectively.
       On October 3, 2012, at the jurisdiction hearing, the juvenile court found the
allegations of the petition true.
       On November 1, 2012, at the disposition hearing, the court made various findings,
including that “there is a substantial danger to the physical health and safety, or physical
or emotional well-being of the minors, or would be if the minors were returned home…,
and the Court therefore makes findings pursuant to ... [section] 361[, subdivision] (c)(1)
because [mother] continues to have an untreated substance abuse and mental health
problem. In addition, [mother] continues to be non-compliant with the Court order[ed]
drug screen.” The court declared each minor to be a dependent child of the juvenile
court; placed the minors in the care, custody and control of the agency; ordered the
agency to provide reunification services to mother; ordered mother to enter into a “Child

1      All further rule references are to the California Rules of Court.
2     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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Welfare Services Plan/Agreement” (case plan) with the agency and to “comply with all
provisions thereof”’; and set a six-month status review hearing (§ 366.21, subd. (e)) for
May 1, 2013.
       On April 26, 2012, the agency filed a status review report (report) recommending
family reunification services for the mother be terminated and a section 366.26
permanency planning hearing be set. In support of the recommendation, the social
worker stated the following: Mother reviewed with social workers and signed her case
plan on November 1, 2012. The case plan required, inter alia, that mother remain free of
drugs and alcohol, submit to random drug testing, participate in mental health services
provided by the agency, and enroll in and complete a parenting class. Mother failed to
comply with the plan in the following respects:
       On seven occasions between December 21, 2012, and April 20, 2013, she refused
to take drug tests and/or tested positive for various substances including
methamphetamine, amphetamines and marijuana.
       She attended two mental health counseling sessions, most recently on September
10, 2012, but since that date she had not provided verification that she had received
mental health services.
       She was referred to a parenting class, but on February 13, 2012, she arrived 15
minutes late for the class. She was told that if she arrived late “she was considered no
show.” She left the class and did not return. She was again referred and went to the class
on April 6, 2013, but again arrived late. She was told that if she missed the next session
she could be dropped from the program. She missed the next scheduled class and as of
the writing of the report, which was dated April 25, 2013, she had not enrolled in a
parenting class.
       “[She] failed to satisfactorily complete her Child Dependency court ordered
services as designed to aid her overcome the problems which led to the initial removal of
her children. [Mother] continues using illegal drugs and is involved in criminal activities,


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as demonstrated by her positive toxicology drug screens and arrests on November 7,
2012, and February 14, 2013, related to drug charges.”
       On May 1, 2013, the six-month review hearing was continued to June 4, 2013, and
on that date continued to June 18, 2013.
       On June 17, 2013, the agency filed an addendum to the report, which stated the
following: Mother tested positive for marijuana and methamphetamine on April 29,
2013. On June 4, 2013, she was asked to submit to random drug testing. She said she
would “go test” that afternoon but failed to do so. The next day she explained that she
“was busy and could not go,” and said she would submit to testing the next morning. At
that time, however, she again failed to appear for testing. A social worker reported that
mother received an initial mental health assessment on May 7, 2013, and was diagnosed
with “bi-polar type 1, without psychotic.” Mother was instructed to call back for an
appointment but failed to do so.
       The six-month review hearing was conducted on June 18, 2013. Mother did not
present any evidence. After stating it had read and considered the report and the
addendum to the report, the court ordered reunification services to mother terminated and
set a section 366.26 hearing for October 10, 2013.
                                      DISCUSSION
       Section 366.21, subdivision (e) (section 366.21(e)) governs the proceedings at the
six-month review hearing. Under section 366.21(e), where, as here, multiple children are
removed from the parents’ custody at the same time and at least one of those children is
under age three at the time of removal, the juvenile court may terminate reunification
services and schedule a section 366.26 hearing only if the court finds by clear and
convincing evidence “the parent failed to participate regularly and make substantive
progress in a court-ordered treatment plan.” (§ 366.21, subd. (e).)3


3      We sometimes refer to this finding as the “treatment plan finding.”


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       As best we can determine, mother’s sole contention in the instant writ proceeding
is that the evidence was insufficient to support the treatment plan finding.4 There is no
merit to this contention.
       As a preliminary matter, we will not review the documents mother included with
her writ petition because they were not presented to and considered by the juvenile court.
(See rule 8.452(b)(1) [writ petition seeking review of an order setting a section 366.26
hearing must be accompanied by a memorandum which “must provide a summary of
significant facts, limited to matters in the record”]; cf. In re Zeth S. (2003) 31 Cal.4th
396, 405 [“It has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration’”].)
       The findings of juvenile courts made pursuant to section 366.21 are reviewed
under the substantial evidence test. (In re James B. (1995) 35 Cal.App.4th 1014, 1020.)
Substantial evidence is evidence that is “‘reasonable, credible and of solid value,’” which
would allow a reasonable trier of fact to reach the conclusion the juvenile court reached.
(In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is substantial
evidence to support the order, contradicted or not, the appellate court must affirm the
decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) We must “view the evidence
in a light most favorable to the respondent,” and “indulge in all reasonable and legitimate
inferences to uphold the judgment.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361.)
       Here, as indicated above, the record demonstrates the following: Mother’s court-
ordered case plan required that she refrain from using drugs, submit to drug testing, and


4      In her writ petition, mother states she is seeking relief from the June 18, 2013
order “setting a hearing under Welfare and Institutions Code section 366.26 petition ....”
Her statement of grounds of her petition, in its entirety, is the following: “I complied
with reunification services fully.” (Unnecessary capitalization omitted.) As her
“Summary of the factual basis for petition,” she provides a list of documents she attached
to her petition. We discuss these documents infra.


                                               5
participate in mental health counseling and a parenting class. Mother, however, on
multiple occasions tested positive for methamphetamine, amphetamines and/or marijuana
and failed to submit to drug testing, failed to attend and, indeed, make a required
appointment for, mental health counseling; and arrived late for her parenting class on
multiple occasions and eventually simply failed to show up for class. On this record, the
evidence was overwhelming that mother “failed to participate regularly and make
substantive progress in a court-ordered treatment plan” within the meaning of section
366.21(e). Thus, substantial evidence supports the treatment plan finding.
       To the extent mother’s argument can be construed to include a claim that not only
did the evidence not support the treatment plan finding, but also that the court in fact
failed to make that finding, we note the following:
       At the June 18, 2013 six-month review hearing, the court, rather than make
detailed findings and orders, simply stated, “The Court ... adopts the findings and
recommendation [of the agency, set forth in report and addendum to the report,] and
makes them the order of the Court.” The only explicit reference to the court-ordered
treatment plan in those recommended findings is the following: “The Court finds by a
preponderance of evidence that return of the children to the custody of [mother] would
create a substantial risk of detriment to the safety, protection, or physical or emotional
well-being of the children as the parent has failed to satisfactorily complete the Court
Ordered Treatment Program, and/or the initial problems leading to out of home
placement have not been alleviated.” (Italics added.) This finding, as the italicized
portion of the preceding quoted passage makes clear, does not constitute a finding by
clear and convincing evidence, as required by section 366.21(e).
       The only other finding at the six-month hearing that relates to the subject matter of
treatment plan finding is the following: “The court finds that the extent of the progress
made by the parent toward alleviating or mitigating the causes necessitating placement
has been minimal to no progress for [mother]. [Mother] continues testing positive for


                                              6
illegal drugs and has not demonstrated that she can live free from drug dependency. She
is not actively participating in counseling to address her mental health issue. [Mother]
failed to engage in parenting classes that were designed to improve her parenting
techniques and help her to overcome the problem which led to the initial removal of her
children. [Mother] is currently homeless and has not demonstrated that she can provide a
safe home environment for her children. She continues her involvement in criminal
activities, as demonstrated by her recent arrests.” This finding, however, although it
makes reference to facts upon which a treatment plan finding could be based, does not
explicitly state that the court found by clear and convincing evidence that mother failed to
participate regularly and make substantive progress in a court-ordered treatment plan.
       We assume without deciding that the foregoing does not constitute compliance
with the requirement of a treatment plan finding. Nonetheless, we conclude such error
does not compel granting the instant writ petition.
       In In re Corienna G. (1989) 213 Cal.App.3d 73 (Corienna G.), the parents of two
minor children, each of whom had been declared a dependent child of the court (§ 300),
appealed from an order made following a contested permanency planning hearing. (Id. at
p. 75.) The parents argued that the juvenile court failed to make a finding required by
former section 366.25, subdivision (d). The court of appeal agreed with the parents that
the court failed to make the statutorily required “express determination” (Corienna G., at
p. 83) in question, but rejected the claim that such failure required reversal and remand to
allow the court to comply with the statute. The court explained: “While we agree that
the better practice would have been for the trial court to have made a required
determination on the record, we perceive no practical purpose which would be achieved
by such a result.” (Id. at p. 83.) “Substantial evidence would amply have supported such
a determination here.” (Id. at p. 84.)
       Similarly, in the instant case, where, as demonstrated above, the evidence amply
supported the conclusion that mother “failed to participate regularly and make


                                             7
substantive progress in a court-ordered treatment plan” within the meaning of section
366.21(e), there is no practical reason to remand the matter to allow the court to make the
required finding.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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