Mark R. v. Super.

Filed 11/28/05 Mark R. v. Super. Ct. CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARK R., Petitioner: v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

G036091 (Super. Ct. Nos. J437545 & DP008543) O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Petition denied.

Muriel L. Johnson, under appointment by the Court of Appeal, for Petitioner.

Benjamin P. de Mayo, County Counsel, Dana J. Stits, Senior Deputy Counsel, and Aurelio Torre, Deputy County Counsel, for Real Party in Interest.

Law Office of Harold LaFlamme and Karen Cianfrani for the Minors.

* * *

Mark R., presumed father of Patricia R. (now nine years old), and Misty R. (now six years old), seeks relief from the juvenile court’s order terminating reunification services and scheduling a permanency hearing pursuant to Welfare and Institutions Code section 366.26.[1] The father contends the court erred in finding that he was offered reasonable reunification services and that returning the children to his custody would create a substantial risk of detriment. We deny the petition.

FACTS

In a dependency petition filed May 28, 2003, the Orange County Social Services Agency (SSA) alleged Patricia and Misty came within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition alleged, inter alia, that Misty was “left unsupervised on a second story balcony and fell over the balcony”; the residence was unsafe and had no electricity and little edible food; the parents had “engaged in acts of domestic violence”; the mother was in jail due to substance abuse problems; and the children’s half-sibling had been declared a court dependent in 1988 due to the mother’s failure to protect the half-sibling from physical abuse by the father. On July 21, 2003, Patricia and Misty were declared dependents, and custody was vested in the father.

Eight months later, by petition dated January 22, 2004, SSA alleged Patricia and Misty came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling). Specific allegations included that the father had failed to bring Patricia to school for two months, had not drug tested for at least three months, and had left the children in the care of relatives who had not been cleared of criminal records; that the father had a criminal record for drug possession, domestic violence and child cruelty; and that the mother was in prison. At the disposition hearing, the court vested custody of the children with SSA.

For the six month review hearing, SSA reported the “prognosis for reunification of the children with their father is good.” At the 12-month review, SSA reported the father had regularly attended and participated in counseling, successfully completed a parenting program, and consistently drug tested with negative results except for two diluted specimens. But the report also discussed the father’s relationship with a woman who had been “identified as the perpetrator” in six child abuse reports and had been arrested for criminal threats and spousal battery. The father was apparently living with and engaged to the woman, and had been informed by SSA that “were it not for the fact that he is residing with this individual, the children could possibly be returned to his care.”

At the 18-month review hearing, the court considered: (1) a July 13, 2005 SSA report stating that the father had continued to live with his girlfriend; became angry and hostile toward the children’s caretaker and SSA; “ceased regular visits with the children”; and instructed them to misbehave with their caretaker and not to cooperate with their therapist; (2) an August 16 report stating the father had resumed visiting the children and had started looking for appropriate housing; and (3) a September 14 report stating the father had moved into a new residence, was employed and would soon have medical insurance, and was “attempting to secure childcare for the children.” The last report concluded, “Until such time as childcare is arranged, [SSA] cannot recommend that the children be placed in the home with [the father].” The court made orders and findings pursuant to a stipulation signed by each party’s counsel, where counsel stipulated that (1) return of the children to the parents “would create a substantial risk of detriment to the physical or emotional well being” of the children, and (2) reasonable services had been “provided or offered to the parent(s).” Although the court ordered termination of reunification services and scheduled a permanency hearing, it also ordered SSA to assist the father with childcare referrals and authorized SSA to “liberalize [his] visits to overnights and weekends, if appropriate.”

DISCUSSION

In a brief containing scant reference to supporting authority, the father argues the court erred in finding that he was provided or offered reasonable services and that returning the children to him would create a substantial risk of detriment to their well being. But the father waived the right to challenge those findings when he stipulated to them below. (See In re Cody W. (1994) 31 Cal.App.4th 221, 231.)

DISPOSITION

The petition is denied.

IKOLA, J.

WE CONCUR:

O’LEARY, ACTING P. J.

MOORE, J.

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