Filed 3/9/16 Jonathan H. v. Superior Court CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

JONATHAN H.,
                                                                                           F072817
         Petitioner,
                                                                         (Tuolumne Super. Ct. No. JV7524)
                   v.

THE SUPERIOR COURT OF TUOLOMUNE                                                          OPINION
COUNTY,

         Respondent;

TUOLUMNE COUNTY DEPARTMENT OF
SOCIAL SERVICES,

         Real Party in Interest.


                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald I.
Segerstrom, Jr., Judge.
         Jonathan H., in pro. per., for Petitioner.
         No appearance for Respondent.
         Sara J. Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel,
for Real Party in Interest.
                                                        -ooOoo-

         *         Before Gomes, Acting P.J., Kane, J. and Pen᷈a, J.
       Jonathan H. (father), in propria persona, seeks extraordinary writ review of the
juvenile court’s orders issued at a contested 12-month review hearing (Welf. & Inst.
Code, § 366.21, subd. (f))1 terminating his reunification services and setting a section
366.26 hearing as to his five-year-old son, Samuel. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In September 2014, the Tuolumne County Department of Social Services
(department) took then four-year-old Samuel into protective custody after discovering
that his mother, Barbara (hereafter “the mother”), and father used methamphetamine
while caring for him. Samuel has Autism Spectrum Disorder. The department placed
him in a foster home.
       The juvenile court exercised its dependency jurisdiction over Samuel at a
dispositional hearing in December 2014 and ordered father and mother to complete a
parenting class and the Dependency Drug Court substance abuse treatment (DDC)
program. The court set the six-month review hearing for May 2015. In the interim,
mother waived her right to reunification services.
       In February 2015, father obtained a medical marijuana recommendation against
the juvenile court’s advice and was terminated from the DDC program. The juvenile
court ordered a new reunification plan for him which required him to complete a
parenting class, a psychological evaluation, a psychotropic medication evaluation and a
domestic violence program, submit to random drug testing, participate in individual
substance abuse counseling and attend three 12-step meetings each week.
       In its report for the six-month review hearing, the department informed the
juvenile court that father made minimal progress. He was unable to take care of himself
and blamed others for his actions. As an example, he physically attacked the mother and

1      All statutory references are to the Welfare and Institutions Code.


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blamed her for the attack as well as his arrest and conviction for battery. He also blamed
her for “making” him forge his 12-Step signature cards and blamed the department for
expecting him to engage in services “immediately.” The department opined that father’s
prospect for reunifying with Samuel was bleak but recommended the juvenile court
continue reunification services for him to the 12-month review hearing because the
statute required it.
       In May 2015, the juvenile court conducted the six-month review hearing and
continued reunification services to the 12-month review hearing which the court set for
November 2015.
       In its report for the 12-month review hearing, the department recommended the
juvenile court terminate father’s reunification services. The department reported that
father had not made any progress in his court-ordered services in the six months since the
last hearing. He failed to attend 12-step meetings and parenting classes, depended on
others for finances, housing and transportation and took no responsibility for himself. In
addition, he had been diagnosed with bipolar disorder and antisocial personality disorder.
Given his lack of progress and mental health disorders, the department did not believe
father was able to consistently and effectively parent Samuel.
       On the date set for the 12-month review hearing, father’s attorney requested a
contested hearing on the department’s recommendation to terminate reunification
services. The juvenile court set a contested hearing for late November 2015. In the
meantime, mother’s attorney filed a section 388 petition asking the juvenile court to order
reunification services for her. The court denied the petition.
       Father testified at the contested 12-month review hearing that he was living with
his girlfriend and looking for a job. He said he had tried very hard to complete his
services and believed he had made a lot of progress, pointing out that he was homeless
and using methamphetamine when Samuel was removed. He believed he would continue

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to benefit from services and said he would do whatever it took to regain custody of
Samuel.
       Father testified on cross-examination he attended only two parenting sessions
because he thought it would be detrimental to apply parenting techniques designed for
non-autistic children to an autistic child. He said he attended 12-step meetings as long as
he was able to find transportation. He did not have a sponsor. He was attending
domestic violence classes, regularly visiting Samuel and complying with his substance
abuse service requirements.
       At the conclusion of the hearing, the juvenile court found it would be detrimental
to return Samuel to father’s custody. The court also found that the department provided
father reasonable services but that there was not a substantial probability Samuel could be
returned to his custody if the court continued services to the 18-month review hearing.
The court terminated father’s reunification services and set a section 366.26 hearing.
       This petition ensued.
                                          DISCUSSION
       Father contends the juvenile court erred in terminating his reunification services.
He supports his contention by stating, “There was substantial compliance with the [court-
ordered] services and the balance of the services could be completed within [six]
months.” Father does not, however, develop his argument by citation to legal authority
and to the record as required by California Rules of Court, rule 8.452 which governs the
content requirements for an extraordinary writ petition. Nevertheless, we will liberally
construe a petition in favor of finding it adequate for review. (Cal. Rules of Court, rule
8.452(a)(1).) In this case, we construe the petition as challenging the sufficiency of the
evidence to support the juvenile court’s finding there was not a substantial probability
Samuel could be returned to father’s custody following an additional period of
reunification services.

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       When the juvenile court determines at the 12-month review hearing, as occurred in
this case, that it would be detrimental to return a child to parental custody, the juvenile
court has little choice but to terminate reunification services unless it finds there is a
substantial probability the child could be returned on or before the 18-month review
hearing. (§ 366.21, subd. (f).) In this case, the juvenile court would have set the 18-
month review hearing in early April 2016.
       In order to find a substantial probability of return, the juvenile court must find all
of the following: (1) the parent consistently and regularly contacted and visited the child;
(2) the parent made significant progress in resolving the problems that led to the child’s
removal; and (3) the parent has demonstrated the capacity and ability to complete the
objectives of his or her treatment plan and provide for the child’s safety, protection and
physical and emotional well-being. (§ 366.21, subd. (g)(1).)
       The juvenile court found that father regularly contacted and visited Samuel but the
court could not make the other two required findings given father’s conduct during the
prior 12 months. Specifically, the court cited the fact that father got a medical marijuana
card even though the court told him not to get one. The court asked rhetorically, “[W]hy
should I have any confidence that he will follow my orders now?” The court also cited
father’s propensity for excusing his own failure to comply, stating, “[H]e’s got every
excuse on the planet and he will continue to have every excuse on the planet.” The
court simply had no confidence that father would comply with its orders.
       On a challenge to the juvenile court’s finding there is not a substantial probability
of return (hereafter “probability of return finding”), we determine whether substantial
evidence supports the finding. In so doing, we do not reweigh the evidence or exercise
independent judgment. Rather, we “‘merely determine if there are sufficient facts to
support the findings of the [juvenile court].’” (Kevin R. v. Superior Court (2010) 191
Cal.App.4th 676, 689.)

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       We conclude substantial evidence supports the juvenile court’s probability of
return finding in light of father’s refusal to comply with the court’s orders. Thus, we
affirm the juvenile court’s orders terminating father’s reunification services and setting a
section 366.26 hearing and deny the petition.
                                         DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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