Filed 3/5/13 Robert M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

ROBERT M.,

Petitioner,

v.

THE SUPERIOR COURT OF KERN 

COUNTY,

Respondent;

KERN COUNTY DEPARTMENT OF 

HUMAN SERVICES,

Real Party in Interest.

F066375

(Super. Ct. No. JD126056-00)

O P I N I O N

THE COURT

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jon E. 

Stuebbe, Judge.

Robert M., in pro. per., for Petitioner.

No appearance for Respondent.

Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County 

Counsel, for Real Party in Interest. 

-ooOoo-

 

 Before Wiseman, Acting P.J., Kane, J., and Peña, J.
2

Robert M. in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 

8.452) from the juvenile court’s orders terminating his reunification services at a 

contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f))1 and setting 

a section 366.26 hearing as to his six-year-old son, Dylan. He contends the juvenile court 

violated his rights under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 

et seq.). Alternatively, he contends the juvenile court erred in finding there was not a 

substantial probability Dylan could be returned to his custody. We disagree and deny the 

petition.

FACTUAL AND PROCEDURAL SUMMARY

Robert and his girlfriend, Alicia,2 are the parents of Dylan, the subject of this writ 

petition. In February 2011, sheriff’s deputies responded to a report of domestic violence 

at the family residence and found Robert and Alicia under the influence of 

methamphetamine and Alicia complaining of neck pain. She said Robert hit her several 

times in the back of the head. Alicia was transported to the hospital, Robert was arrested, 

and then four-year-old Dylan and his eight-year-old half brother Johnny were taken into 

protective custody by the Kern County Department of Human Services (department). 

They were placed together in foster care. 

In April 2011, the juvenile court exercised its dependency jurisdiction pursuant to 

an original petition (§ 300, subd. (b)), ordered the children removed from parental 

custody, and ordered reunification services for Alicia as to Dylan and Johnny, and for 

Robert as to Dylan. Robert and Alicia’s services plans required them to participate in 

domestic violence and substance abuse counseling and submit to random drug testing. 

 

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

indicated.

2 Alicia did not file a writ petition.
3

The juvenile court did not offer reunification services to Johnny’s alleged father. The 

juvenile court set the six-month review hearing for September 2011, though it was 

continued until November. 

Meanwhile, Robert and Alicia separated and were both doing well in their services 

plans; however, Robert began what the juvenile court would later characterize as a 

“campaign” to discredit Alicia. In August 2011, social worker Grace Abaya visited 

Robert at his home. He took the opportunity to tell her that Alicia was using drugs and 

had a drug-addicted boyfriend. Abaya told Robert that she could not discuss Alicia’s 

case with him and told him he needed to focus on himself and his efforts to reunify with 

Dylan. According to Abaya, “Robert kept going on and on about Alicia” and she had to 

interrupt him to tell him not to worry about her. In addition, Robert made increasing 

demands for more time with Dylan and accused the department of treating him unfairly in 

relation to Alicia. In its report for the six-month review hearing, the department advised 

the juvenile court that Robert appeared to be attempting to exert control over Alicia 

through Dylan, and stated it was not yet ready to recommend family maintenance 

services for either parent. 

In November 2011, at the six-month review hearing, the juvenile court continued 

reunification services for Robert and Alicia to the 12-month review hearing, which it 

scheduled in March 2012. It was continued and ultimately conducted as to Robert in 

December 2012. 

In the interim, Robert’s preoccupation with Alicia intensified, particularly as it 

related to her boyfriend, David. Robert enlisted the assistance of his two ex-wives, 

Michelle and Robin, to track Alicia and her activities. Michelle lived in Alicia’s 

neighborhood. She videotaped Alicia and followed her in her car. Robin lived in 

Georgia. While researching Alicia and David’s names on the Internet, she discovered 

that Alicia was scheduled to appear in Ridgecrest for a hearing on a petition for a 
4

restraining order filed by David. Robin informed Robert who with his girlfriend, 

Rosemary, traveled to attend the hearing. They sat in the courtroom until the case was 

called and dismissed. All the while, Alicia had a restraining order against Robert 

prohibiting him from being within 100 yards of her. Robin also filed a complaint with a 

state agency against the veterinarian who employed Alicia. As a result, the veterinarian 

was investigated for violations. 

In April 2012, the department filed a petition under section 388 asking the juvenile 

court to order a psychological evaluation for Robert in light of his behavior and 

information the department received that Robert had previously been diagnosed with 

obsessive compulsive disorder, depression, and bipolar disorder. The juvenile court set a 

hearing on the section 388 petition for April 2012. 

In May 2012, the juvenile court conducted the 12-month review hearing as to

Alicia and ordered the children placed with her under family maintenance. As part of her 

family maintenance plan, Alicia was required to submit to monthly random drug testing. 

The juvenile court continued the 12-month reviewing hearing as to Robert and the section 

388 hearing (combined hearing) to May 2012. 

The combined hearing was continued and convened in June 2012. After hearing 

testimony, the juvenile court granted the section 388 petition and appointed psychologist 

Dr. Eugene T. Couture to evaluate Robert. The juvenile court also continued the 12-

month review hearing to August 2012. The 12-month review hearing was continued 

multiple times and conducted as a contested hearing in December 2012. 

Meanwhile, in July 2012, Dr. Couture evaluated Robert and diagnosed him with 

bipolar I disorder. During the evaluation, Dr. Couture ascertained that Robert had been 

treated for the disorder since the 1990’s and was receiving appropriate medical treatment 

for it. Nevertheless, Dr. Couture opined that Robert was either still symptomatic or also 

had a personality disorder. Further, he opined that Robert presented a continuing danger 
5

to Dylan, even with treatment, and that the juvenile court should cease any effort to 

reunite them. 

In October 2012, the department filed a non-custody supplemental petition (§ 387) 

asking the juvenile court to detain Dylan and Johnny because Alicia had stopped drug 

testing and her live-in boyfriend, Joseph, threw a porcelain plate at her striking her in the 

arm, and threatened to kill her. It was also reported that Alicia appeared to be under the 

influence of drugs. 

Alicia explained that she had not drug tested because she was undergoing 

chemotherapy for thyroid cancer and that the chemotherapy impaired her memory and 

caused bladder infections, which prevented her from producing a urine sample. She 

attributed any irregularities in her speech and coordination to her thyroid tumor. 

In December 2012, the juvenile court convened a contested dispositional hearing 

as to Alicia on the supplemental petition and the 12-month review hearing as to Robert 

on the original petition. The department’s recommendations to the juvenile court were to 

terminate reunification services for both parents and set a section 366.26 hearing as to 

Dylan and Johnny who, by this time, had been placed with a non-related extended family 

member. By the time of the hearing, Robert had consistently tested negative for drugs 

and completed an outpatient substance abuse program and domestic violence counseling. 

The juvenile court first adjudicated the supplemental petition. Alicia testified 

about her cancer diagnosis and the effects of chemotherapy on her comportment. She 

also testified that she missed drug tests because her testing number was changed without 

her knowledge. As it turned out, her testimony was perjured and she did not have cancer. 

Following a continuance and further argument, the juvenile court sustained the 

supplemental petition and terminated Alicia’s reunification services. 

The juvenile court then proceeded to adjudicate the 12-month review hearing as to 

Robert. Dr. Couture testified and described bipolar I disorder and how it manifests 
6

behaviorally. He also testified why it would be inherently dangerous to the minor child 

of a parent suffering from the disorder. In Robert’s case, Dr. Couture stated, “I don’t 

think he can control himself in a sufficient manner to be entrusted with the care of his 

son. It’s that simple.” At no time during the hearing did Robert’s attorney raise an issue 

with respect to the Americans with Disabilities Act.

At the conclusion of the hearing, the juvenile court found that Robert’s efforts to 

resolve the situation requiring Dylan’s removal had been minimal. The juvenile court 

also found that it would be detrimental to return Dylan to Robert’s custody and that there 

was not a substantial probability Dylan could be returned to him with continuing services. 

Consequently, the juvenile court terminated Robert’s reunification services and set a 

section 366.26 hearing. 

Robert filed a writ petition and appeared for oral argument. At oral argument, he 

raised issues not raised in his petition. Since we do not address issues raised for the first 

time at oral argument, we will not address them. (See People v. Harris (1992) 10 

Cal.App.4th 672, 686.) Rather, we confine our review to the issues raised in the petition. 

DISCUSSION

I. Americans with Disabilities Act

Robert contends that bipolar I disorder is a protected disability under the 

Americans with Disabilities Act (ADA). Therefore, he further contends the juvenile 

court violated his rights under the ADA by terminating his reunification services based 

on his disorder. Because Robert raises this issue for the first time on appeal, it is not 

properly before us. (In re M.S. (2009) 174 Cal.App.4th 1241, 1252.)

In any event, “the ADA does not directly apply to juvenile dependency 

proceedings and cannot be used as a defense in them.” (In re Diamond H. (2000) 82 

Cal.App.4th 1127, 1139, overruled on another ground as stated in Renee J. v. Superior 

Court (2001) 26 Cal.4th 735, 748, fn. 6.) Consequently, even if Robert had preserved the 
7

issue, the ADA is not a proper basis for challenging the juvenile court’s order terminating 

his reunification services.

II. Detrimental Return

Robert contends that he fully complied with his services plan. In light of his 

request that the juvenile court be directed to return Dylan to his custody, his contention 

could be liberally construed as a challenge to the juvenile court’s finding that returning 

Dylan to Robert would place Dylan at a substantial risk of detriment. We will so 

construe it.

At each review hearing, there is a statutory presumption that the child will be 

returned to parental custody unless the juvenile court finds, by a preponderance of the 

evidence, that the return of the child would create a substantial risk of detriment to the 

child’s safety, protection or well-being. (§§ 366.21, subds. (e) & (f); 366.22, subd. (a).) 

In assessing the risk of detriment, the juvenile court considers the extent to which the 

parent participated and made progress in the court-ordered treatment plan. (§§ 366.21, 

subds. (e) & (f); 366.22, subd. (a).) However, ultimately, the court’s decision hinges on 

whether the child would be safe in parental custody. (In re Dustin R. (1997) 54 

Cal.App.4th 1131, 1141-1142.) 

On a challenge to the sufficiency of the evidence to support the juvenile court’s 

finding, the question is not whether the juvenile court could have made a contrary 

finding, but whether the finding it made is supported by substantial evidence. (In re 

Dakota H. (2005) 132 Cal.App.4th 212, 228.) On the facts of this record, we conclude 

that it is.

In this case, Dr. Couture testified that Robert’s sense of entitlement without 

bounds made him inherently dangerous and the record supports his opinion. Robert’s 

completion of his services plan does not diminish that danger or otherwise make him a 
8

safe parent. Thus, the juvenile court properly ruled in not returning Dylan to Robert’s 

custody.

III. Substantial Probability of Return

Robert’s contention that he fully complied with his services plan could also be 

construed as challenging the juvenile court’s finding there was not a substantial 

probability of return. If the juvenile court finds there is a substantial probability that the 

child can be returned to parental custody and safely maintained in the home, the juvenile 

court can continue services beyond 12 months.3 (§§ 361.5, subd. (a)(3); 366.21, subd. 

(g)(1).) 

One of the factors the juvenile court must affirmatively find in assessing the 

probability of return is whether the parent demonstrated the capacity and ability to 

complete the objectives of his or her treatment plan. (§ 366.21, subd. (g)(1)(C).) 

However, the juvenile court must also find that the parent “demonstrated the capacity and 

ability ... to provide for the child’s safety, protection, physical and emotional well-being, 

and special needs.” (Ibid.)

Here, even though Robert completed the technical requirements of his services 

plan, there was substantial evidence that returning Dylan to his custody would endanger 

Dylan. Further, there was no evidence that extending Robert’s services would change the 

situation. Thus, the juvenile court properly found there was not a substantial probability 

 

3 Technically, the juvenile court in this case would have also been required to find 

that it was in Dylan’s best interest in order to continue services. That is so because 

Robert had already received in excess of 18 months of services when the juvenile court 

conducted the 12-month review hearing in December 2012. Under the statute, the 

juvenile court can extend reunification services up to 18 months from the date the child is 

originally removed from the parent’s physical custody. (§ 361.5, subd. (a)(3).) Since 

Dylan was originally removed from Robert’s physical custody in February 2011, August 

2012 marked 18 months of reunification. 
9

of return and properly ruled in terminating Robert’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.