Santa Clara County Department of Family & Children's Services v. Edgar R.

2 Cal. App. 4th 904
CourtCalifornia Court of Appeal
DecidedDecember 23, 1991
DocketNo. H007758; No. H007742
StatusPublished
Cited by1 cases

This text of 2 Cal. App. 4th 904 (Santa Clara County Department of Family & Children's Services v. Edgar R.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santa Clara County Department of Family & Children's Services v. Edgar R., 2 Cal. App. 4th 904 (Cal. Ct. App. 1991).

Opinion

Opinion

ELIA, J.

Edgar R. (appellant) appeals a permanency planning hearing order which continued his son, Brian R., in out-of-home custody and authorized county counsel to file a petition to terminate his parental rights. Recognizing that parts of this order are appealable and parts reviewable only by writ (see Welf. & Inst. Code, § 366.25, subd. (j); In re Elizabeth M. (1991) 232 Cal.App.3d 553, 562-563 [283 Cal.Rptr. 483]; In re Violet J. (1990) 225 Cal.App.3d 600, 606 [275 Cal.Rptr. 139; In re Kristin W. (1990) 222 Cal.App.3d 234, 245 [271 Cal.Rptr. 629]), appellate counsel has also filed a petition for a writ of mandate and/or prohibition, and a request that we stay further proceedings. We ordered that the petition be considered with the appeal.

In his writ petition, appellant claims that insufficient evidence supports the referral for termination proceedings and that respondent Santa Clara County Department of Family and Children’s Services failed to meet its burden of proof; that speculation on appellant’s future conduct is an insufficient basis for denying him custody of his son; that since appellant’s life has stabilized and present circumstances may be considered in a Civil Code section 232 proceeding, Brian’s uncertainty will be needlessly prolonged if termination proceedings are instituted; that Brian’s adoptability was not [911]*911established by complete and competent evidence; that appellant has complied with reunification; and that his due process rights were impugned both by the court’s failure to appoint competent mental health evaluators and defense experts, and by its failure to appoint counsel for him. Since appellant has failed to make a prima facie showing, we will deny the writ petition and the request for a stay of further proceedings.

In his appeal, appellant argues in addition that the juvenile court erred in discontinuing reunification and curtailing visitation, and that further reunification time was necessary in light both of the delay in review hearings and the fact that appellant was not appointed counsel until a year after disposition. We find no error and will affirm the trial court’s order.

Factual and Procedural Background

Brian R. was born on January 3, 1987. When his mother was arrested on October 15,1988, Brian went to live with his maternal grandmother. He was placed in protective custody by his grandmother on October 17, 1988. According to the Welfare and Institutions Code section 300, subdivision (a) petition1 filed on October 9,1988, the grandmother was unwilling to provide care for Brian without the supervision of the juvenile court, since there had been a history of extreme conflict between Brian’s parents.

Brian was returned to his grandmother’s home after a detention hearing on October 20, 1988. According to the social worker’s report submitted for the jurisdiction hearing, dated November 7, 1988, Brian’s mother, who is not a party to this appeal, was arrested on October 15, 1988, after a warrant check following a routine traffic stop showed an outstanding warrant for violating her probation.

A combined jurisdiction and disposition hearing was held on November 7, 1988. Both parents admitted the petition’s allegations, which the court found true as amended. It then sustained the petition, and ordered that Brian remain in the home of his maternal grandparents.

A family reunification service plan, filed on December 19, was signed by both parents. It required individual and family counseling, attendance at a substance abuse program, weekly chemical testing, stable housing, parent education classes, resolution of adult court obligations, and abstention from drugs and alcohol. Visits with Brian were made contingent on negative drug tests.

[912]*912Due to “family problems” relating to the needs of Brian’s great-grandfather, the juvenile court approved Brian’s move to the foster home where he still resided on February 10, 1989. His foster mother wished to adopt him.

On April 3, 1989, the case worker informed the court that according to Brian’s maternal grandmother, both parents had left the state and their whereabouts were unknown. Neither had responded to requests to contact the social worker and neither had fulfilled adult court obligations.

A revised reunification plan, filed on May 1, 1989, was designed to cover the period May 1 to November 1, 1989. Neither parent signed this plan.

The social worker’s report for the six-month review hearing, filed on May 1, 1989, indicated that Brian had been removed to foster care due to family problems in the grandparents’ home. He was adjusting to his new placement, and dental work had markedly improved his speech and eating. Neither parent had substantially complied with the service plan. Nonetheless, further reunification was recommended. Further reunification was ordered at the six-month review hearing on May 1, 1989, and Brian was continued in his foster placement.

A 12-month review hearing was originally calendared for October 19, 1989, but was continued to November 13, 1989. On November 3, 1989, appellant was appointed counsel. On November 13, the case was continued to November 27, when it was set for a contested 12-month review commencing on January 5,1990. Hearings commenced on January 5,1990, and ended more than eight months later, on August 14, 1990. An oral decision was rendered at a hearing on September 5, 1990, that the case be referred for the initiation of termination proceedings. This appeal and writ petition ensued.

Discussion

I. Writ Petition

A. Sufficiency of the Evidence

Appellant first contends that insufficient evidence justified the juvenile court’s authorization of Civil Code section 232 proceedings to terminate his and Brian’s mother’s parental rights, and that the juvenile court abused its discretion in finding that respondent had met its burden of proof. We disagree.

As appellant notes, in order to maintain custody over a dependent child at a status review hearing, section 366.2, subdivision (e) requires respondent to [913]*913demonstrate by a preponderance of the evidence that returning the child to his or her parents would “create a substantial risk of detriment to the physical or emotional well-being of the minor.” A parent’s failure to participate regularly in court-ordered treatment programs constitutes prima facie evidence that return would be detrimental. (Ibid.) Appellant appears to allege that respondent failed to meet its burden of proof in establishing a risk of detriment to Brian if he were returned to appellant’s custody. He also contends that the juvenile court failed to comply with section 366.25, subdivision (c), in failing to make a determination, prior to developing a permanent plan for Brian, that there was no substantial likelihood that Brian would be returned to his parents within six months.

The chronology of this extraordinarily lengthy case defeats both these arguments. While the contested hearing which commenced in January 1990 was originally scheduled as a 12-month review, the case was heard over an 8-month period, and by the time it ended, the case was 22 months from disposition.

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Related

In Re Brian R.
2 Cal. App. 4th 904 (California Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
2 Cal. App. 4th 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santa-clara-county-department-of-family-childrens-services-v-edgar-r-calctapp-1991.