Opinion
B307041
02-25-2021
In re Robert H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.D.H., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. Nos. 19CCJP04692A, 19CCJP04692B APPEAL from an order of the Superior Court of Los Angeles County. Stephen C. Marpet, Judge Pro Tempore of the Juvenile Court. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
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Father appeals a disposition order removing his then seven-year old son and one-year old daughter from his and their mother's custody after the juvenile court sustained a Welfare and Institutions Code section 387 supplemental petition. He challenges the sufficiency of the evidence to support the court's findings that the children were at risk of substantial harm to their physical or emotional well-being and that there were no reasonable means absent removal to protect them. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's order, if possible. (In re R.T. (2017) 3 Cal.5th 622, 633.)
The family consists of father, mother, their son Robert (born December 2012), and their daughter R.H. (born May 2019). In July 2019, the Los Angeles County Department of Children and Family Services (the Department) filed a petition in the juvenile court under section 300, subdivision (b)(1) alleging the children's physical health and safety were at serious risk of harm due to parents' daily marijuana use, which interfered with their ability to care for and supervise their children. At the detention hearing, the juvenile court released the children to parents under the Department's supervision. The court did not restrict parents from using marijuana but ordered them not to smoke in the home and to ensure any marijuana was locked up and out of reach of the children. The court ordered the Department to provide family preservation services, referrals to parents for random/on-demand drug testing, and referrals to father for mental health services, and to make unannounced home visits.
We state the allegations as amended by the juvenile court. The Department filed the petition after a caller reported the home was filthy and father had been drinking in the garage and possibly using drugs while caring for the children alone. The responding social worker observed the home to be cluttered but not filthy. She also saw marijuana paraphernalia in the living room. Parents believed the caller was their landlord with whom they had argued. Parents tested positive for marijuana when asked to test in July.
In 2014, father expressed suicide ideation while visiting his twin daughters from a previous relationship.
The Department interviewed the family. Father is a DJ. He said he primarily smokes marijuana for back pain, but also in social occasions to relax. He typically smokes at night, but sometimes smokes when he wakes up. He smokes at work, but if he is at home he smokes outside or in the garage. Mother said she uses marijuana about three times a week at night after the children are asleep. They both have a long history of marijuana use.
In its last minute information report filed October 16, 2019, the Department advised the court parents had missed three drug tests. The Department also noted Robert had several school absences. Parents stated Robert had missed school because of his asthma. The Department social worker gave parents a referral for a mobile pediatric asthma program (Breathmobile) and a form to complete for the school nurse. The Department also informed the court the family needed new housing due to issues with the landlord. On September 20, 2019, mother told the social worker the landlord had asked them to move out after she had an altercation with him. She said the family had nowhere to go. At that point, parents also informed the social worker about the possibility of moving in with father's grandmother (paternal great-grandmother).
Robert had 36 absences during the 2018-2019 school year when he was in kindergarten. On September 25, 2019, Robert's school informed the Department he had already missed nine days of school.
At the October 18, 2019 combined jurisdiction and disposition hearing, both parents pleaded no contest to the amended dependency petition. The juvenile court declared the children dependents of the court under section 300, subdivision (b). The court released the children to parents' home, finding reasonable services available to prevent their removal. The court ordered parents to submit to weekly random drug testing. Parents were to submit to six consecutive random drug tests. A "dirty" drug test would require the parent to enroll in a substance abuse program. Father was to complete a parenting class, and attend individual counseling to address child safety, anger management, and substance abuse triggers. The Department was to provide and assist parents and the children with family maintenance services, including for all mental health issues.
The court made similar orders as to mother.
At the January 22, 2020 non-appearance progress report hearing, the Department submitted its last minute information report stating it had "unresolved safety and overall well-being concerns for minors." It reported father tested positive for marijuana on July 18, 2019 (before the detention hearing, as previously reported) and on November 7, 2019. He failed to provide a specimen for drug testing on seven dates between July 2019 (July 16) and December 2019. Mother missed ten collection dates.
The Department reiterated Robert's school attendance issue in 2018-2019. The Department learned on November 15, 2019, that Robert had missed another 12 days of school, for a total of 21 absences during the initial months of his first grade year. The Department repeated mother's explanation that the majority of Robert's absences were due to asthma attacks. The school was trying to help mother schedule the Breathmobile for Robert. Mother apparently was waiting for delivery of a breathing machine prescribed by Robert's doctor but said she could not reach the pharmacy by phone. The Department social worker successfully called the pharmacy for mother so she could arrange for delivery.
The Department reported the social worker had followed up with mother on seven occasions between September and December 2019 about contacting Legal Aid or moving into paternal great-grandmother's home. Mother declined the social worker's offer to refer her to transitional and sober living housing "due to substance testing, house rules . . .[,] and not being comfortable for her or her children." Mother also had not called Legal Aid. Mother received a notice of eviction in November 2019 and a notice to vacate in December 2019. The family was ordered to vacate by January 20, 2020.
The Department also reported on the parents' progress in the court-ordered services. The social worker provided parents with the necessary referrals for their court-ordered services on November 1, 2019—about two weeks after the jurisdiction/disposition hearing. As of January 2020, mother had not enrolled in any services. In December 2019, father told the social worker he had a mental health evaluation on December 20, 2019 and was starting a parenting class on January 6, 2020. On January 14, 2020, father sent a message confirming he and mother had attended one parenting class. The social worker visited mother the next day to get an update on her housing plans. She still had not called Legal Aid about the eviction and did not yet have firm housing plans.
The Department opined parents were not "seriously focusing on complying with the Court orders." The Department noted the social worker had warned parents their failure to comply could result in removal of the children from mother's care. On January 22, 2020, the juvenile court found parents not in compliance with their case plans, ordered family preservation services, and set an appearance progress hearing for February 27, 2020.
The Department filed a last minute information report with the court the day of the February 2020 hearing. The Department noted it had submitted the referral for family preservation services for parents on January 24, 2020. The Department advised the court that mother had never drug tested. The Department social worker visited mother unannounced on February 6, 2020. Robert, who was seven at the time, said mother was in the garage smoking. Mother did not have marijuana in her hands, but the social worker could smell marijuana in the air. Mother was holding the baby, and a female friend was sitting nearby. The next day, mother agreed to go in for an on-demand drug test; she never went.
Father had been testing. He tested positive for marijuana on January 2 and 17, 2020. The levels were much lower than in July 2019. He did not appear for testing on December 31, 2019.
Father's marijuana levels in July 2019 were 2,178 ng/ml. He tested at 424 ng/ml on January 2, 2020, and 409 ng/ml on January 17, 2020.
On February 12, 2020, a psychiatric social worker informed the Department she had tried to reach mother by phone and mail several times to schedule a mental health treatment plan appointment for Robert, but mother had not responded. That agency closed the referral.
As for the family's eviction, by court order the family had until March 3, 2020, to move out of the home. Mother chose to remain in the home until then. She told the social worker she had nowhere to go but declined referrals to shelters or transitional homes. Father already had moved in with his grandmother. Mother did not know if she would move there, too. Father did not mention if the family could move in.
Parents appeared in court on February 27, 2020. The court admonished parents to cooperate with its orders requiring them to attend counseling and to submit to random drug testing. If a parent tested positive for illegal drugs or for marijuana, the parent would need to enroll in a substance abuse program. The court also admonished parents to meet their children's needs, including Robert's asthma, and to obtain an Individualized Education Plan (IEP) for Robert. It ordered the Department to continue to assist parents and the children in their family maintenance services and to provide those services.
The Reporter's Transcript does not include this hearing.
At some point in March 2020, mother and the children moved into the home of father and his grandmother. On March 31, 2020, a social worker met with parents outside of paternal great-grandmother's home. Parents said Robert had not had any breathing problems since moving out of their old home. On April 8, 2020, the social worker conducted a virtual inspection of paternal grandmother's home through FaceTime. She observed no hazards. The social worker saw R.H., who appeared to be healthy and happy. The social worker spoke to Robert. He told her he "feels better with no breathing problems." He also appeared to be healthy and happy.
By mid-March 2020, the state and county had imposed restrictions on in-person activities as a result of the COVID-19 pandemic, including a stay-at-home order.
Mother said she was ready to help Robert with his education, including an IEP. Mother still had not submitted to drug testing, and father had tested "dirty," once in February and once in March.
The Department made that statement in its report, but the lab results are not attached to the copy in the appellate record. We cannot tell if the original report attached them.
On April 28, 2020, the Department filed a supplemental petition under section 387 alleging parents' failure to comply with their court-ordered case plans endangered the children's physical health and safety and placed them at risk of harm. The Department had detained the children from parents on April 24, 2020, and placed them with maternal aunt.
In its status review report, the Department noted maternal aunt and her wife were interested in caring for the children. Mother originally had agreed to have the children move in with maternal aunt, but then changed her mind and moved in with father and paternal great-grandmother. There was some animosity between father and maternal aunt. After the April 8, 2020 FaceTime call with the family, the social worker called maternal aunt to see if she was still interested in caring for the children, as the social worker was seeking a warrant to detain them.
In its last minute information report filed May 1, 2020, the Department informed the court it interviewed Robert by telephone while he was in maternal aunt's care. Robert stated that paternal great-grandmother had hit him on his arms, legs, and stomach when he was living there. He also said mother had hit him with a belt. He stated, " 'they treat [R.H.] good but treat him like trash.' " Robert also revealed paternal great-grandmother "smoke[d] constantly while in the home." Maternal aunt informed the Department she had received medication for Robert. She also said the school district told her Robert was in jeopardy of not promoting to second grade due to absences.
At the May 1, 2020 detention hearing, the children's counsel joined with the Department's and requested they be detained from both parents. Robert wanted to stay with his maternal relatives because they did not smoke; he had not been coughing since staying with them. He told counsel he did not want to return to his parents if they continued to live in paternal great-grandmother's home. Counsel argued parents' lack of compliance with their case plans created a substantial risk to the children. Parents continued to use marijuana despite Robert's asthma problems. Counsel noted the school offered help, but parents did not follow through.
Both parents' counsel argued the children were not at risk. They noted the Department had found paternal great-grandmother's home appropriate, and Robert's respiratory problems had resolved after moving from their prior home, where mold was exacerbating Robert's asthma, into paternal great-grandmother's home. Counsel also disputed the last-minute abuse allegations, noting there had been no report of physical abuse or signs of bruising on the children at their detention.
Father's counsel noted Robert himself reported no breathing problems at paternal great-grandmother's home. Counsel explained paternal great-grandmother smoked primarily outside, but sometimes smoked in her room.
Counsel noted that, despite a family preservation order in January, no one from family preservation had contacted parents. Counsel argued those services would have helped parents comply with their case plans and provide parenting and counseling support to prevent removal. Father's counsel also suggested the Department could continue to make unannounced visits to the home. Counsel also noted father was willing to participate in the open psychiatric referral with his son, but no one had reached out to him about it—the social worker had communicated with mother only. Father had started parenting classes, but the program had ceased due to the pandemic. Counsel suggested the Department could refer parents to teleservices so that they could comply with the court's orders from home. Finally, father had told counsel he could "put into place an appropriate plan so that he can be the primary parent if that's required."
Similarly, mother's counsel noted mother had assumed the drug testing center was closed due to the pandemic. The Department had not confirmed if the drug testing centers had precautions in place—e.g., the ability to provide masks and gloves—to ensure she did not risk exposing her children to the COVID-19 virus.
The Department's counsel disagreed. She noted parents had been admonished repeatedly about their need to comply with their case plans. She argued they continued to live in a house with mold "till the very last moment . . . they were forced to leave. They . . . appear[ ] to have had no interest in leaving to care for this child. . . . They then chose to move into a home where there is active smoking." Counsel noted there was no information that parents were providing medical care to Robert, and his educational issues remained unattended.
The court found the Department had met its burden to demonstrate a prima facie case to detain the children from parents: the parents had not complied with most of the court's orders from October 2019, they had not followed up on educational and developmental needs of the children, and there was an allegation of physical abuse. The court also concluded that, despite mother's belief drug testing was not available due to the pandemic, she still did not have the "testing consistency" to show her commitment to sobriety and in turn her commitment to provide a safe home for the children. The court also noted father's positive tests in March and April. The court ordered monitored visitation for a minimum of twice a week, two hours per visit.
The Department's jurisdiction/disposition report, filed July 29, 2020, primarily repeated information from its prior reports, but also included recent updates. A social worker texted father the day before the detention hearing, three times in May, and once in mid-June, to provide referrals and drug testing information and to receive updates, but father did not respond. Maternal aunt informed the social worker on June 26, 2020 that father had sent her a text message stating he would not be providing assistance or information because "[h]e d[id] not care about anything since his kids are not in his home."
The Department provided mother drug testing information on May 11, 2020. Nevertheless, mother asked the social worker to "hold off" on submitting the referral to drug test because she "had been smoking." The social worker provided mother with referrals to counseling, parenting classes, and substance testing later that month. The social worker also met with mother on June 30, 2020 to obtain parental consent to obtain mental health services for Robert.
The social worker interviewed Robert on July 1, 2020. He told her he liked staying with his aunt. He was participating in on-line schoolwork but had difficulty with reading. He had a cell phone to call his mother. Maternal aunt was concerned about Robert's mental health, anger, and behavior.
On August 4, 2020, the juvenile court convened the combined adjudication and disposition hearing on the Department's supplemental petition. Children's counsel joined with the Department in asking the court to sustain the section 387 petition and to remove the children. She noted Robert had significant asthma, but parents had not followed up on treating it and continued to use marijuana. Counsel said Robert reported his coughing had stopped since staying with his aunt, but he still needed to use an inhaler.
Both mother's and father's counsel argued there was little new information in the jurisdiction report to support the new petition. Father's counsel again noted the children had been detained despite, according to the detention report, the social worker having found no safety concerns in paternal great-grandmother's home and Robert's respiratory issues having resolved. Counsel conceded father was not in full compliance with his case plan but argued the family had been focused on the emergency housing issue when they were being evicted. Counsel noted father was continuing to attend parenting classes, but the Department still had not assigned father to a drug testing site closer to his home or reached out to him about R.H.'s medical appointments, as ordered at the May 2020 detention hearing. According to father, he had not heard from the Department until its very brief interview of him the week before the hearing. Counsel again argued the family preservation services were never put in place and those services could help to return children to parents' custody.
The juvenile court concluded the evidence demonstrated "parents have just not done what the court asked to be done. . . . They continued to resist to test. They continued to resist to attend any programs."
The court vacated its prior home of parent order and ordered the children suitably placed with maternal aunt. The court ordered the Department to provide the parents family reunification services and to help parents with their case plans. The court ordered monitored visits for parents at least twice a week for two hours each visit and gave the Department discretion to liberalize visitation.
Father filed a timely notice of appeal from the juvenile court's order sustaining the section 387 petition and removing the children from father's care.
DISCUSSION
Father does not challenge the order declaring the children dependents of the juvenile court under section 300, subdivision (b). His appeal concerns the court's order sustaining the Department's section 387 petition, finding the children were at substantial risk of harm due to parents' noncompliance with their case plans, and removing the children from parents' custody. Father maintains there was insufficient evidence to prove the children were at substantial risk of harm in his custody, and alternatively argues there were reasonable alternatives to removal that would have addressed whatever risk existed.
1. Applicable law and standard of review
"A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161 (T.W.), citing § 387; Cal. Rules of Court, rule 5.560(c).) In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); rule 5.565(e)(1).) "If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate." (T.W., at p. 1161, citing rule 5.565(e)(2).) A section 387 petition need not allege any new jurisdictional facts or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. (T.W., at p. 1161.) "The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child." (Ibid., citing § 387, subd. (b).)
"When a section 387 petition seeks to remove a minor from parental custody, the court applies the procedures and protections of section 361. [Citation.] Before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, '[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody.' " (T.W., supra, 214 Cal.App.4th at p. 1163, citing § 361, subd. (c)(1).)
"A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor[s] and (2) potential detriment to the minor[s] if [they] remain[ ] with the parent. [Citation.] The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (T.W., supra, 214 Cal.App.4th at p. 1163.) The juvenile court may consider the parent's past conduct as well as the present circumstances. (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
We review the juvenile court's jurisdictional and dispositional findings for substantial evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161.) "Evidence is ' "[s]ubstantial" ' if it is ' " 'reasonable, credible, and of solid value.' " ' " (Ibid.) When reviewing a finding that required proof by clear and convincing evidence—as we must here—we consider "whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) We review the record in the light most favorable to the prevailing party—here, the Department—and "give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (T.W., at p. 1162.)
2. Substantial evidence supports the juvenile court's finding the children faced substantial risk of harm
Father argues there were no safety concerns at the time the children were detained, despite parents' noncompliance with their case plans: paternal great-grandmother's home had no safety hazards, Robert's breathing problems had subsided since moving out of the prior home, the children appeared to be healthy and happy, and mother planned to enroll Robert in a nearby school when pandemic restrictions allowed. In determining whether a current risk of harm exists, juvenile courts may consider, among other things, "the nature of the conduct and all surrounding circumstances," "evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child," and "participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026.)
By the time of the May and August 2020 hearings, both children continued to need substantial supervision—R.H. was just entering toddlerhood and Robert had serious asthma, as well as educational and mental health needs. The children may have appeared to be living in a safe place at the time the social worker performed her FaceTime inspection, but substantial evidence demonstrates parents' lack of attention to their children's needs—particularly Robert's—placed the children's physical and mental health at risk of harm.
The juvenile court declared the children dependents under section 300 because of parents' inability to provide adequate care for them due to their marijuana use. Mother nevertheless continued to smoke marijuana, and the court could infer from the evidence that she did so while supervising the children—not only did the social worker smell marijuana when she visited mother in February 2020, but Robert said mother was smoking, and mother failed to drug test after that encounter. Even after her children were detained, mother continued to smoke marijuana and failed to drug test. She even wanted the Department to delay submitting a new drug testing referral in May because she had been smoking. At a minimum, R.H.—as a child of tender years—faced an "inherent risk to [her] physical health and safety" without adequate supervision and care. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, disapproved on other grounds in In re R.T., supra, 3 Cal.5th at pp. 624, 629, 632.)
Some of mother's inability to test in March and April appears to have been due to pandemic-related concerns or closures. But in May 2020, the Department gave mother new drug testing information. The Department also told mother she had a new bus pass for June, but mother never responded to arrange for its delivery.
Parents also failed to meet Robert's medical, educational, and mental health needs. The school had to follow up repeatedly with mother to schedule the Breathmobile—designed to help manage Robert's asthma and, in turn, prevent school absences—and mother delayed in following up on the delivery of Robert's prescribed breathing machine. Parents also waited until the last moment to move the children out of the home they said had mold problems—parents' proffered reason for Robert's aggravated asthma that caused his school absences. Yet, parents then moved the children into a home with an active smoker without regard to how Robert's asthma could be affected. True, Robert said he felt better and had no breathing problems there. But, after he was moved to his aunt's home, he told the social worker that paternal great-grandmother smoked "constantly while in the home." He also told his counsel he did not want to return to that house. He liked living in a nonsmoking household and had less coughing since moving in with his aunt. We can infer the juvenile court found Robert's statements to the social worker and his counsel credible. The court reasonably could conclude Robert—at only age seven—did not realize the adverse effect his paternal great-grandmother's smoking had on his asthma until he moved to a nonsmoking environment.
Mother also failed to respond to the social worker's attempts to schedule a treatment plan to address Robert's mental health issues. As a result, the mental health services referral was closed, and Robert did not timely receive the individual therapy he needed. And, she delayed in obtaining an IEP despite the court's order.
The Department resubmitted a mental health services referral for Robert on July 2, 2020.
Here, the risk of harm was not based on parents' marijuana use alone or even their failure to comply with their case plans alone. (Cf. In re W.O. (1979) 88 Cal.App.3d 906, 907, 910, relied on by father [" 'remote possibility' " children might ingest drugs after parents failed to comply with case plan and had drugs in home did not support removal; removing children "is not an appropriate punishment" for violating court's case plan order].) Rather, the court's finding was based on evidence demonstrating it highly probable the children were at risk of actual harm in parents' care, including through mother's use of marijuana while supervising the children, and parents' failure to meet Robert's physical and mental health needs.
3. Substantial evidence supports the juvenile court's finding there were no reasonable means to protect the children short of removal
Father contends that, assuming the children were at risk of harm, there were reasonable means available to prevent their removal. Father argues, as he did to the juvenile court, he never received court-ordered family preservation services. Those services would have helped connect him to counseling and to medical services for Robert. Father already was drug testing. Father also argues the Department could have made more frequent, unannounced home visits to ensure the children's safety.
It appears family preservation services were delayed, even before the onset of pandemic restrictions in March 2020. We recognize the pandemic also contributed to some of parents' inability to comply with their case plans. Nevertheless, the Department had provided parents with referrals to services since fall 2019 to no avail. Parents only partially participated in their case plans despite repeated warnings their noncompliance could result in their children's removal. Except for her initial test, mother never drug tested for the Department, and father also was a no show for some calls to test. Father attributed parents' noncompliance to their emergency housing situation. Yet, mother rejected the Department's repeated offers to refer her and the children to transitional housing or a sober living home, in part because mother did not want to abide by their drug testing policies.
As we have said, mother had concerns about COVID-19 exposure at drug testing sites. Father needed to be assigned to a closer testing site, but that apparently did not happen. His parenting classes also ceased due to the pandemic.
We recognize the children were in mother's primary care, and father was not aware mother had not scheduled Robert for his mental health treatment plan. But father knew Robert suffered from serious asthma. He continued to blame Robert's respiratory problems on the prior home's mold issue and did not seem to recognize the risks Robert faced as an asthmatic by living in the home of a smoker. To that end, father let his personal feelings about maternal aunt overshadow his children's needs when he rejected her offer to have the children live with her temporarily.
At the May 2020 detention hearing, father's counsel argued father was willing to participate in Robert's mental health treatment if the Department notified him. He also suggested father would participate in teleservices so that he could comply with his case plan from home during the pandemic. Father apparently told counsel he could "put into place an appropriate plan" to become the children's primary parent if needed.
If father had worked with the Department between then and the August 4, 2020 hearing to do those things, we might agree reasonable alternatives short of removal existed to ensure the children's safety. He did not. As far as we can tell, after the children were detained, father essentially checked out. He claimed he had not heard from the Department until the week before the August 2020 hearing. The evidence contradicts father's statement. According to the July 29, 2020 jurisdiction/disposition report, the Department reached out to father on five separate occasions between the end of April and mid-June 2020 to provide him the referrals he needed, but father neither returned those messages nor independently reached out to the Department. It's unclear if the Department tried to reach father in July. Given father's noncommunication, the juvenile court reasonably could conclude further attempts to contact father would be futile, and the Department had made reasonable attempts to provide father services.
Maternal aunt also had told the social worker that father sent her a text message stating he would not be providing any assistance or information.
Viewing the record as a whole—and in light of father's choice not to engage with the Department to demonstrate the children could be safely returned to father's care—substantial evidence supports the juvenile court's finding that the additional services and measures father suggested would not ensure the safety of the children's physical and mental health in parents' or only father's custody. Removal of the children from parents' custody therefore was proper. (§ 361, subd. (c)(1).)
Our ruling should not be read to condone the apparent delay in providing family preservation services to parents. This is not the first case before us where a parent has not received court-ordered services. We respectfully remind the Department to provide greater oversight to ensure the timely delivery of court-ordered services.
We also note that, as father states, the juvenile court's original exercise of dependency over the children was not based on egregious facts. Although substantial evidence supports the juvenile court's removal order, we fully expect parents' progress in their case plans will demonstrate their willingness and ability to provide for their children's needs, resulting in their return to parents' custody.
DISPOSITION
The juvenile court's August 4, 2020 removal order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.