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A.H. v. Superior Court of Orange County

March 11, 2010


Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Writ denied. (Super. Ct. No. DP017727-30).

The opinion of the court was delivered by: O'leary, J.



A.H. (Father) seeks relief from the juvenile court order at the 12-month review hearing terminating his family reunification services and setting a permanency hearing pursuant to Welfare and Institutions Code section 366.26.*fn1 Father has four children: Robert (seven years old), Laura (six years old), Makayla (four years old), and Alfred (three years old).*fn2 Father was incarcerated for much of the dependency period, which hindered his ability to participate in his case plan. On appeal, he argues the juvenile court should have applied section 361.5, subdivision (a)(2),*fn3 which takes into account a parent's incarceration, rather than section 366.21 subdivision (g)(1), which does not. We conclude the juvenile court correctly considered both statutory provisions, and there was ample evidence to support its orders. We deny the writ petition.


On October 21, 2008, the children were taken into protective custody after their parents were arrested on outstanding warrants. They had been living in deplorable conditions. Their home was a filthy basement containing an open sewer hole full of urine and feces. There was no refrigerator, and the children did not have enough food. They were not fed on a consistent basis. Mother, Father, and other residents in the home smoked methamphetamine when the children were present.

Father gave the police a false name and claimed to be just visiting. He had a criminal record and was affiliated with gangs. Mother appeared to be under the influence of drugs. There were three prior child abuse reports regarding the children, including a substantiated report Laura required hospitalization due to rotten teeth.

The petition (filed under § 300, subds. (b) & (g)) alleged the children were living in an unsanitary and unhealthy home, Father had an unresolved substance abuse problem, the oldest child had not been enrolled in school, and the parents engaged in domestic violence in front of the children. Finally, the petition alleged the parents were unavailable due to their incarceration.

At the detention hearing, the juvenile court determined there was a substantial danger to the children's health if they were not removed from their parents' custody. Father attended the hearing. The court ordered services and twice weekly monitored visitation.

After 10 days, Father was out of custody and met with the social worker. Father said he had enrolled in a substance abuse program. Father was given referrals for case plan services, which included random drug testing, drug patch testing, bus passes, and Alcoholics/Narcotics Anonymous meetings (AA/NA meetings). He visited the children at Orangewood Children's Home, and it was reported the visits went well.

In early November, the children were placed in a foster home. They displayed no behavioral problems, but it appeared Robert was depressed. Robert commented he liked that his new home did not smell like "pee." Robert discussed his failure to attend school and the domestic violence he and his siblings witnessed. Laura said she saw her parents steal and argue frequently. She said it made her younger siblings cry. All the children suffered from severe tooth decay.

On November 12, Mother reported to the agency she and Father were homeless. Father missed several appointments to have a drug patch applied. He missed two random drug tests. One test had been positive for benzodiazepines. Father ignored the parenting education facilitator's attempts to invite him to meetings. He did not attend any meetings or appear at the pretrial hearing on November 26. On that day, he was arrested for shoplifting.

In mid-December, Father and Mother pled no contest to an amended petition. Both parents were again incarcerated. The court ordered family reunification services for the parents. Father was given one visit per week while he remained incarcerated.

Before the six-month review hearing, the social worker reported Father was released from custody on January 5, 2009. He failed to respond to the social worker's attempts to contact him. On January 20, the paternal grandmother reported she had kicked him out of her home because she knew he was using drugs. Father did not participate in any 12-step meetings, enroll in classes, or drug test while he was out of custody. On January 22 father was arrested for larceny, violating probation, and a gang enhancement. Although Father was eligible for services in jail, none were available. In addition, Father did not have access to mental health services. The social worker gave Father a ...

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