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FELIX S v. THE SUPERIOR COURT OF MENDOCINO

November 30, 2010

FELIX S., PETITIONER,
v.
THE SUPERIOR COURT OF MENDOCINO COUNTY,
RESPONDENT;
MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES ET AL., REAL PARTIES IN INTEREST.



The opinion of the court was delivered by: Jones, P.J.

Felix S. v. Superior Court

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Pursuant to California Rules of Court, rule 8.452, petitioner Felix S. (father or Felix) moves to vacate the order issued by the juvenile court terminating reunification services as to his son, Felix Jr., and setting a Welfare and Institutions Code section 366.26 hearing (.26 hearing).*fn1 Father contends: (1) he was entitled to additional reunification services; (2) the court improperly considered hearsay statements contained in the social workers' reports; and (3) the reunification services provided by the Mendocino County Health and Human Services Agency (Agency) were inadequate. Father also requests a stay.

We deny the petition and the request for a stay.

FACTUAL AND PROCEDURAL BACKGROUND

Felix Jr. was born in December 2008. Mother was 22 when Felix Jr. was born; father was 19. In July 2009, the Agency filed a section 300 petition alleging mother and father failed to protect Felix Jr. The petition alleged both parents had placed Felix Jr. at substantial risk of harm by engaging in numerous incidents of domestic violence from November 2008 to July 2009. Specifically, the petition alleged father had struck mother and kicked her in the presence of Felix Jr. and that both parents had placed Felix Jr. at risk of child abuse by staying at the home of Felix's father, Duane S., a registered sex offender. (§ 300, subd. (b).) The court detained Felix Jr. and, in August 2009, determined he came within section 300, subdivision (b).

Following a dispositional hearing, the court ordered mother and father to participate in reunification services. The court adopted the Agency's case plan for father, which required him to, among other things, "[s]tay sober and show [his] ability to live free from alcohol dependency" by: (1) completing a "substance abuse assessment . . . or other drug/alcohol treatment program . . .;" (2) submitting "clean, unadulterated drug/alcohol tests;" (3) maintaining "a clean and sober lifestyle," and (3) refraining from allowing Felix Jr. "to be exposed to anyone abusing drugs or alcohol."

Six-Month Review Reports and Hearing

In a report prepared for the six-month review hearing, the Agency stated father had been "diligent about visiting his son. He is consistently on time for his visits and he interacts with his baby appropriately. He is open to suggestions as to how to interact with his child." The Agency also noted that father would begin a series of parenting classes and showed "strong motivation" to accomplish his parenting goals. The report noted, however, that father attended the Family Empowerment Group class sporadically from October 2009 to February 2010. The report also stated that father had been eligible to begin taking a Basic Education class in late September 2009, but had been "very slow to begin" the class: he did not begin taking the class until January 2010. Despite his slow start, however, the report noted father was "aware of the core issues in his case relating to appropriate housing, a violent relationship between himself and . . . mother and the negative role of alcohol in his life." The Agency described how two social workers met with father to go "over his case plan with him thoroughly to be sure that he understood what he needed to be working on." The social worker gave father "directions for conducting a level four unsupervised visit" and encouraged father to attend his classes regularly.

According to the report, father had "made strides toward providing housing for his family." He had been refurbishing a two-bedroom mobile home and had "applied for Tribal help with obtaining a water and sewer system to be installed. . . ." When a social worker visited the mobile home in early February 2010, she noticed father had been working on the mobile home and that the two bedrooms "were in [a] condition to be used." The social worker noted, however, that the bathroom was "lacking fixtures and need[ed] to be repaired" and that there was animal feces on the floor in the living room. Father said the feces was "recent" and that he was in the process of removing it.

Finally, the report described two areas of concern: (1) father tested positive for THC*fn2 three times in January and February 2010, indicating he was "not living a clean and sober lifestyle"; and (2) father was arrested on January 6, 2010, for criminal threats (Pen. Code, § 422), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), battery (Pen. Code, § 242), injuring a telephone or electric line (Pen. Code, § 591), and vandalism (Pen. Code, § 594). The Agency expressed "great concern" that father was not complying with the part of his case plan requiring "that he not behave in a manner that is verbally, emotionally, physically, or sexually abusive or threatening." In addition, the Agency remarked that father's actions "would indicate that [he] has not made significant progress in dealing with the domestic violence issues that brought him to the attention of the court."

According to the report, mother told the social worker that she had been living with father since late October 2009. She also said that on January 6, 2010, father was "drunk and disorderly in public[,] and that he had been in the middle of the street downtown screaming and that the police were called and that he was arrested."*fn3 Mother also told the social worker that she thought she had a "skull fracture" because, on a separate occasion when she was two to four months pregnant with father's second child, father had beaten her up "and punched her in the face and head." When mother fell to the ground during the altercation, father kicked her in the head. Medical records confirmed mother sought medical attention; mother's treating physician remarked, "severe domestic violence with a right forehead contusion and a right arm contusion."

The Agency concluded father had "not made significant progress toward completing the objectives of his case plan and [was] not ready to provide for his child's safety and protection and to meet the physical and emotional needs of his child." The Agency recommended terminating reunification services and setting a .26 hearing, in part because father had not addressed his "violent actions and domestic violence issues" and had been "arrested for acts of violence and [was] facing criminal charges."

In various addendum reports, the Agency reported that father tested positive for THC and ethyl sulfate on March 2, 2010, and that mother was admitted to the hospital in mid-March 2010 with a swollen face, bloody eyes, and cuts on her mouth and forehead. Mother had a broken jaw, cheek bone, and nose and told social workers that father had beaten her up.*fn4 The Agency also reported that mother's right eye was swollen and bruised in mid-March, which mother claimed was caused by an altercation with her cousin over cigarettes. Finally, the Agency noted that father had been convicted of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) arising out of the January 6, 2010 incident.

The court held a contested six-month review hearing on June 1, 2010. Following the hearing, the court concluded returning Felix Jr. to father's care would create a substantial risk of detriment to Felix Jr. and that father had "not made significant progress toward alleviating or mitigating the causes necessitating [Felix Jr.'s] placement in foster care[.]" The court, however, continued reunification services for father and set a 12-month review hearing for July 2010.

12-Month Review Report and Hearing

In its 12-month review report filed July 26, 2010, the Agency reported father had negative drug tests in May and June and had received certificates for completing various parenting classes, including Raising Resilient Children, Round Valley Parenting Classes, and Positive Parenting. The report also noted that father had been participating in anger management and domestic violence classes.

The Agency reported that father's weekly visits with Felix Jr. were "going well," that he was affectionate with Felix Jr. and that Felix Jr. was "happy to see [ ] father." According to the report, father "seem[ed] to have earned the support of his Tribe by engaging in services and disengaging with [ ] mother." The Agency did note, however, that father had continued to live with his parents, at a "home . . . not considered to be an appropriate place for [father] to return his child."

The report described an incident in April 2010 where father was 40 minutes late to a Discipline with Confidence class and was informed he was too late to attend the class." In response, he stated, "'Fuck, fuck, you mother fuckers.'" The report also stated that mother and father had been spending time together in violation of the March 25, 2010 restraining order: the social worker noted that she saw mother and father together in father's car after a visit with Felix Jr. in June 2010. Finally, the Agency explained its concern that father had failed to "take any responsibility for any of the domestic violence or physical abuse caused to the mother;" instead, father "minimizes the issues and places blame on [mother] or others for the abuse [mother] has suffered. . . . [Father] has a history of stating he does not know where [mother] is and that he and [mother] are not together."

The Agency recommended terminating reunification services for father. The Agency explained that father had received 12 months of services and had been unable to "disconnect himself from the volatile relationship that he has with [ ] mother. . . . Severe domestic violence in this case is what brought the issues to the attention of the Court. These issues have not been resolved, and [father] has not made substantive progress in regards to the ongoing and serious domestic violence between him and [ ] mother and his anger management issues. ...


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