Filed 8/12/14 M.J. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

M.J.,
                   Petitioner,
                                                                                       F069515
         v.
                                                                             (Super. Ct. No. 516661)
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
                                                                                   OPINION
                   Respondent;

STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,

                   Real Party in Interest.



                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
         M.J., in pro per., for Petitioner.
         No appearance for Respondent.
         John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Real Party in Interest.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Detjen, J., and Franson, J.
       Petitioner M.J. (father) in propria persona seeks extraordinary writ review (Cal.
Rules of Court, rules 8.450-8.452) of the juvenile court’s orders terminating his
reunification services as to his one-year-old son M.D. under Welfare and Institutions
Code section 388, subdivision (c)(1)(B)1 and setting a section 366.26 hearing. We deny
the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       Father and Michelle are the unmarried parents of one-year-old M.D. Michelle has
an approximate 15-year history of methamphetamine use which began when she was 15
years old. As a result of her drug use, she lost her parental rights to an infant son in June
2004. During the dependency proceedings for her son, Michelle gave birth to a daughter.
She and the daughter tested positive for amphetamines. The child was removed from
Michelle’s custody and she was denied reunification services. The child’s father
successfully reunified with her. Also around this same time, Michelle was charged with
possession of a controlled substance and apparently pled guilty. The criminal court
entered a deferred judgment on the condition she complete a drug court program.
Michelle did not complete the program and was convicted of the charge.
       In April 2013, Michelle gave birth to M.D. She and M.D. tested positive for
amphetamine. Michelle identified father as one of two men who could be M.D.’s father.
She said she and father had been in a relationship for five years but terminated the
relationship. She said she was in a relationship with Raymond, the other alleged father.
The Stanislaus County Community Service Agency (agency) took M.D. into protective
custody.




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


                                              2
       Father said he was willing to care for M.D. if he was his child. Father admitted to
using methamphetamine, marijuana and cocaine but said he had not used drugs for 15
years. However, the criminal database showed that he was arrested in February 2011 for
possession of a controlled substance. The court entered a deferred judgment on the
condition that father complete a drug court program. In September 2012, father
successfully completed the program.
       The juvenile court ordered M.D. detained and ordered father and Raymond to
undergo paternity testing. In May 2013, the agency placed M.D. in the home of Mr. and
Mrs. O.
       In July 2013, the juvenile court adjudged M.D. its dependent. By this time,
father’s biological paternity had been established and, at Michelle’s request, the agency
allowed joint visitation with M.D. Meanwhile, Michelle continued to use
methamphetamine. At the dispositional hearing conducted the same month, the juvenile
court denied Michelle reunification services but ordered reunification services for father
and set a six-month review hearing for January 2014. His services plan required him to
complete a domestic violence assessment, participate in substance abuse treatment,
submit to random drug testing and attend a minimum of three Alcoholics/Narcotics
Anonymous (AA/NA) meetings each week.
       In December 2013, the agency filed its report for the six-month review hearing
asking the juvenile court to continue father’s reunification services and grant it discretion
to allow overnight and weekend visits. The agency reported that father had demonstrated
a willingness and capacity to actively participate in and complete his services. He
entered residential treatment in July 2013 and tested positive for methamphetamine.
However, he went on to complete residential and day treatment and tested negative for
drugs. He continued to do well in the intensive outpatient program and regularly met



                                              3
with his sponsor. In addition, he was participating in domestic violence and parenting
programs, attending AA/NA meetings and regularly visiting M.D.
       In January 2014, the juvenile court conducted the six-month review hearing and
continued father’s reunification services to the 12-month review hearing which the court
set in June 2014. The court advised father not to allow Michelle to have any contact with
M.D. unless approved by the agency.
       In April 2014, minor’s counsel (counsel) filed a “Request to Change Court Order”
(JV-180) pursuant to section 388 asking the juvenile court to terminate father’s
reunification services and set a section 366.26 hearing because he allowed contact
between Michelle and M.D. and appeared to be in a relationship with Michelle. As
evidence of their contact, counsel attached a declaration from Mrs. O. describing
communications between father and Michelle via Facebook.
       In her declaration, Mrs. O. asserts the following facts: On July 16, 2013, father
posted on his page “Michelle I love you once again you most likely saved my life and for
that you are my everything.” Seven days into father’s treatment, Michelle posted, “I’m
so proud of my love, my baby daddy [father] for doing this rehab so he can get our baby
back home.” Someone asked her if she was continuing rehabilitation. She replied, “well,
I’m just going to let my baby daddy get him back. It’s much easier for him than it is for
me.” In December 2013, father got his first all day visit outside of the agency. Shortly
after that visit, Michelle posted a picture of M.D. from that visit. In February 2014,
father started overnight visits. Father told Mrs. O. that he took M.D. to his old house
where his other children live. A few days later, Michelle posted a picture of M.D. and his
half-sister during that visit. Mrs. O. said that father updated her weekly about Michelle’s
well-being but would always add “her uncle tells me.” On March 25, 2014, Michelle
posted a picture of dinner her mother brought her. Father told her he would see her the
next day. The next day, Mrs. O. dropped M.D. off for his weekend visit. The following

                                             4
week, Mrs. O. read a post of Michelle’s which led her to Michelle’s mother’s page.
There was a picture of Michelle sitting on a blanket holding M.D. and feeding him a
bottle. Mrs. O. recognized the clothes M.D. was wearing as those she packed for him for
his weekend visit with father. She also recognized father’s backpack which was on the
ground next to Michelle’s knee.
      Counsel attached screenshots of the Facebook entries referenced in Mrs. O.’s
declaration and the picture of Michelle holding and feeding M.D. to the JV-180.
      In May 2014, the juvenile court conducted a contested hearing on counsel’s
section 388 petition. Mrs. O. testified she viewed Michelle’s Facebook page daily for the
prior year at first because she was curious about Michelle and subsequently because she
was concerned father and Michelle were in a relationship. She described the screenshots
from Michelle’s and father’s Facebook pages and the juvenile court entered them into
evidence over the objections of Michelle’s and father’s attorneys. The juvenile court
explained it would give the screenshots the appropriate weight but was not finding that
counsel had laid a proper foundation for them.
      Father testified he was not romantically involved with Michelle but they had a
friendly relationship. He explained “Michelle takes a place in my heart. She’s the
mother of my son.” He acknowledged having contact with her though he believed she
was using drugs. He did not, however, believe Michelle jeopardized his recovery. He
said he was living in a sober living facility, had not used methamphetamine for 10
months and 26 days and finished the 12-step program and was working through it a
second time.
      Father also testified about the visit in March 2014 at the park where Michelle was
photographed holding and feeding M.D. He said he was there with M.D. and was joined
by Michelle, her mother (grandmother) and her uncle. He said he did not intend to meet
Michelle there and left with M.D. as soon as he saw her. He explained that he had

                                            5
planned to take M.D. to visit his other children. He ran into the grandmother at the bus
station and she wanted to visit M.D. Father agreed to meet the grandmother at a park
near the airport which he conceded was not in a safe place and required multiple bus
transfers to get there. When he arrived, the grandmother was already there. Michelle’s
uncle arrived after a few minutes and Michelle arrived approximately 20 minutes later.
Father said he did not see Michelle arrive. Previously, he gave M.D. and M.D.’s bottle to
the grandmother and stepped approximately 20 to 30 feet away to talk to Michelle’s
uncle. While they were talking, he heard Michelle’s voice, looked over toward the
grandmother and saw that Michelle was holding and feeding M.D. He walked over to
Michelle, took M.D. away from her and boarded a bus that was just pulling up. He said
he was not watching when the grandmother gave M.D. to Michelle.
       At the conclusion of the hearing, the juvenile court granted the section 388
petition, terminated father’s reunification services and set a section 366.26 hearing. In
ruling, the juvenile court stated it was not seriously considering granting the section 388
petition until father testified and lied about the circumstances resulting in Michelle’s
contact with M.D. at the park. The court concluded from father’s dishonesty that he had
not made substantive progress in his services plan and there was not a substantial
likelihood M.D. could be returned to his custody by the 12-month review hearing. This
petition ensued.
                                      DISCUSSION
       Father asks this court to review the juvenile court’s decision terminating his
reunification services. He contends the juvenile court’s decision was error because he
made progress in his services plan and his Facebook communications were
misunderstood.
       When the juvenile court removes a child from parental custody, it generally orders
reunification services; the duration of which depends on the age of the child. If, as here,

                                              6
the child is under the age of three years on the date of the initial removal, the juvenile
court may extend services up to the 12-month review hearing. (§ 361.5, subd. (a)(1)(B).)
Here, the 12-month review hearing was scheduled to be heard in June 2014.
       A parent is not entitled to a prescribed minimum period of services and the
juvenile court may terminate services before the applicable statutory period has expired if
termination would serve the child’s best interests. In this regard, section 388, subdivision
(c)(1)(B) provides that any party to a dependency proceeding, including the child, may
petition the juvenile court to terminate reunification services early under certain
circumstances such as when the action or inaction of the parent creates a substantial
likelihood that reunification will not occur because that parent has failed to regularly
participate or make substantive progress in a court-ordered treatment plan.
       In order to terminate reunification services under section 388, subdivision
(c)(1)(B), the juvenile court must find clear and convincing evidence that the parent
failed to regularly participate or make substantive progress in his or her court-ordered
treatment plan. (§ 388, subd. (c)(3).)2
       On appeal we review the juvenile court’s ruling on a section 388 petition for abuse
of discretion. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) “In exercising its
discretion, the court has ‘the ability to evaluate whether the parent will utilize additional
services and whether those services would ultimately inure to the benefit of the minor.’
[Citation.] We will not disturb the court’s determination unless the court has exceeded
the limits of legal discretion by making an arbitrary, capricious or patently absurd
determination. When two or more inferences reasonably can be deduced from the facts,



2      Section 388, subdivision (c)(3) also requires the juvenile court to find by a
preponderance of the evidence that the agency provided the parent reasonable services.
Father does not claim the services he was provided were not reasonable.


                                              7
we have no authority to reweigh the evidence or substitute our judgment for that of the
juvenile court.’ [Citation.]” (Ibid.)
       We conclude there is substantial evidence on this record father failed to make
substantive progress in his services plan. In reaching our conclusion, we did not conduct
an independent review of the evidence concerning father’s relationship with Michelle as
father has asked us to do. It is not our role, as an appellate court, to act as a factfinder.
Rather, that is the role of the juvenile court. Our role is to review the evidence in a light
most favorable to the juvenile court’s decision. (In re Heather B. (1992) 9 Cal.App.4th
535, 563 (Heather B.).) In doing so, we defer to the juvenile court on decisions regarding
the weight of evidence and the credibility of witnesses. (In re Heather A. (1996) 52
Cal.App.4th 183, 193.) We will uphold the juvenile court’s decision unless no rational
factfinder could reach the same conclusion. (Heather B., supra, 9 Cal.App.4th at p. 563.)
       The juvenile court assessed father’s credibility based on his testimony and
determined that he lied about how Michelle came into contact with M.D. The court also
determined that father’s willingness to lie to the court signified his lack of progress in his
substance abuse treatment. The juvenile court stated:

               “ … I was really not convinced until I heard [father’s testimony].
       And … I find … his testimony … totally lacking in … credibility .… ¶ …
       He lied about how it all happened that [M.D.] and he and Michelle … just
       happened to be at [the] park.… ¶ … ¶ And I wrote down, .… ‘Honesty is
       paramount to recovery.’ And here we are, ten months, 26 days, and there is
       no honesty.… [I]n any substance abuse counseling, they are going to tell
       you you’ve got to be honest if you’re going to be able to kick the habit.…
       ¶ … ¶ [I]t appeared on the surface that [father] was making progress. And
       now we’re almost at 12 months, and I see that there might be some progress
       in some areas, but a major area--being honest and forthright and protective
       of this little boy--are not there at all. We’re way far from it.”
       In addition, father knew that Michelle was still using drugs and had no intention of
stopping. Yet he was willing to expose M.D. to her and risk his own chances of
reunifying with his son.

                                               8
       On that evidence, a rational factfinder could conclude that father did not make
substantive progress in his services plan and that there was not a substantial likelihood
that he would reunify with M.D. by the 12-month review hearing. Thus, we conclude the
juvenile court did not abuse its discretion in terminating father’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.




                                              9
