Opinion
F080840
06-05-2020
ADAM C., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
John W. Stovall III, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JVDP-19-000117, JVDP-19-000118)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. John W. Stovall III, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Detjen, J. and Snauffer, J.
-ooOoo-
Adam C. (father) seeks an extraordinary writ from the juvenile court's orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)) terminating reunification services and setting a section 366.26 hearing as to his now six- and two-year-old daughters, R.C. and J.C., respectively. Father contends the juvenile court erred in not returning the children to his custody. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In May 2019, the Stanislaus County Community Services Agency (agency) responded to a call from law enforcement that Y.S., the children's mother (mother), was hitting then five-year-old R.C., repeatedly in a store. She reportedly pushed R.C. to the ground by her head and then picked her up by the head and threw her into the stroller. R.C. had a cigarette burn on her forehead. Mother was arrested. She told law enforcement she was mentally ill. Father's whereabouts were unknown.
Mother did not file a writ petition.
The investigating social worker observed that the children were very dirty and had bug bites and head lice. J.C. had bug bites and scabs on her face, arms and legs and very bad diaper rash that covered most of her vaginal area. Some of her skin peeled off when the social worker attempted to clean her. R.C.'s toenails were long and jagged. She wore pullups and also had diaper rash and what appeared to be deep red circles and scabs. She was inconsistent as to who burned her with a cigarette, telling the police mother did it and the social worker that father did.
The social worker took the children into protective custody and placed them in foster care.
Mother denied hitting R.C., claiming she had only given her a time out by making her sit on the floor. She also denied the injury on R.C.'s forehead was a burn, stating the children injured themselves. However, when told that R.C. said she burned her with a cigarette, mother said it may have been an accident. Mother also denied current use of drugs but admitted to using marijuana and methamphetamine in the past. The agency, however, had information that she was actively using drugs. It received a referral the month before that mother lived in a shed where she left the children locked in for as long as a couple of days. Her family believed she was using heroin and methamphetamine and reported she could be violent.
The agency filed a dependency petition on the children's behalf, alleging under section 300, subdivisions (a) and (b)(1) that mother physically abused R.C. and neglected the children. It further alleged under subdivision (b)(1) mother had mental health problems, abused drugs and had a history of arrests for battery and child endangerment and that father was arrested in May and October 2010 for driving under the influence (DUI). The petition also alleged under subdivision (g) the parents left the children without support because mother was incarcerated and father's whereabouts were unknown.
The parents appeared at the detention hearing on May 17, 2019, and the juvenile court ordered the children detained. The agency referred the parents to Sierra Vista Child and Family Services (Sierra Vista) for individual counseling and parenting education and to a clinic at the agency facility for a substance use disorder (SUD) assessment. The agency also referred mother to Sierra Vista for a clinical assessment.
The agency recommended the juvenile court exercise its dependency jurisdiction over the children and offer the parents reunification services. It reported the parents were not married. Mother had three older minor children who lived with their respective fathers. She suffered from depression in the past but did not believe she needed treatment. Father was employed full time as a chef and had one adult daughter that he saw regularly. After his DUI in 2010, he stopped drinking alcohol. He used marijuana on a rare occasion. He did not feel his living situation was appropriate for the children and asked for assistance with housing.
Since the detention hearing, father had not participated in any of the services offered, which he attributed to his work schedule. Mother completed a SUD assessment and was not referred for treatment because she denied any drug use and the results of a hair follicle test were positive for marijuana but at a very low level. The agency, however, recommended the court refer her for a psychological evaluation to determine whether she could benefit from services. The agency also informed the court that R.C. disclosed being sexually molested while living homeless with mother.
On July 9, 2019, the juvenile court dismissed the subdivision (g) allegations under section 300 and adjudged the children dependents under subdivisions (a) and (b)(1). The court ordered them removed from parental custody, ordered the parents to complete the services previously offered and set the six-month review hearing for January 2020. The court also ordered mother to complete a psychological evaluation and ordered twice monthly supervised visits for father's adult daughter, Jordan H.
At an interim progress review hearing in October 2019, the juvenile court found mother made good progress but father's was "limited." The court admonished father about the consequences of not participating in and making progress in his services plan.
In its report for the six-month review hearing, the agency recommended the juvenile court terminate the parents' reunification services and set a section 366.26 hearing. Although mother completed her reunification services, she denied physically harming R.C. despite evidence that she did and a psychologist opined she suffered from a mental disability that prevented her from benefitting from services. She was pregnant with a child which she assumed was by father and was due to give birth in February 2020. Father had not completed any of his services, claiming his work and visitation schedule precluded his participation. He regularly visited the children but the visitation staff were concerned about his occasional demanding, rude and argumentative behavior toward the staff. He also blamed mother for the children's removal without taking any responsibility for his absence and failure to protect them. The agency did not believe it was likely the children could be returned to parental custody by the 12-month review hearing given the parents' failure to make meaningful progress. Meanwhile, the children were placed with their maternal aunt and doing well, although J.C. had severe behavioral issues and separation anxiety.
The six-month review hearing was set as a contested matter on February 20, 2020. Meanwhile, mother's attorney filed a modification petition (§ 388), requesting a second psychological evaluation. The juvenile court set a hearing on the petition to coincide with the six-month review hearing.
In an addendum report, the agency informed the juvenile court mother gave birth to a daughter, D.S., on February 10, 2020. The baby was experiencing withdrawal symptoms and mother tested positive for opiates, which she denied using. D.S. tested negative for drugs. The agency took D.S. into protective custody and placed her with her siblings. Father did not know if he was D.S.'s father and requested a paternity test. He was working and living on his employer's property. A social worker assessed his home and observed dirty dishes and a dirty bathroom. He claimed mother was violent and " 'beat the sh** out of [him] for years.' " He agreed to voluntarily test and tested positive for THC and alcohol. He completed five parenting and individual counseling sessions but had not completed a substance abuse assessment and was not drug testing.
The six-month review hearing was conducted on February 24, 2020. Mother's attorney withdrew the section 388 petition. Mother, called by the agency, admitted only to yelling on the day the children were taken, not at them but at the situation, explaining that R.C. was throwing a tantrum in the store. She denied that she was engaged to father but said he gave her a ring sometime around June 2019.
Father's attorney called Jordan H., father's then 21-year-old daughter, and attempted to elicit her observations of his drug use. She testified she lived with father until she was eight years old. Afterward, she visited him on weekends. Asked whether she saw him use drugs during that time, she answered, "No." However, the court sustained an objection and struck her answer as irrelevant because she had not lived with him for 13 years. After another relevance objection, the court accepted her testimony that she had not seen drugs when she visited him over the prior three years. She participated in visits with father and the children since their removal and described all four of them as "happy." On cross-examination, she testified she considered a "drug" as anything that was illegal. She considered marijuana and alcohol as drugs since they were addictive.
Following testimony, father made an offer of proof that he loved his children and regularly visited them. He was homeless when the case was initiated but alleviated that problem by obtaining steady employment and a house. Once he obtained a home, it was easier for him to engage in services, which be began earnestly in October. However, he did not receive a class schedule until December and regularly participated in classes since then. He acknowledged having a problem with marijuana but planned to eliminate it and become abstinent. He would engage in a SUD and follow all recommendations made. He asked the court to recognize that he could reunify with the children in the next six months and grant him continued services. The court accepted his offer of proof.
Father also called social worker Katrina Lohre to testify. She did not know until December 2019 that father's work and class schedules conflicted because he did not tell her until then. Once he did, she worked with his clinician to schedule his sessions around his work.
Mother's counselor testified mother participated in six parenting and four individual sessions with her and she retained information well. However, she denied any of the circumstances surrounding the children's removal except the allegation she yelled.
Father's attorney argued the agency failed in its burden of proving it would be detrimental to return the children to his custody. Alternatively, he argued the court should find he participated regularly and made substantive progress in his services plan and continue services to the 12-month review hearing. Minors' counsel supported termination of reunification services.
The juvenile court found it would be detrimental to return the children to parental custody. The court was concerned about mother's denial. It was also concerned that father was aware mother was violent and took no action for years to protect the children and did not engage in services for the first five months of reunification services and had yet to undergo a SUD assessment. He also failed to drug test when required and when he voluntarily tested in D.S.'s case, he tested positive for THC and alcohol. Although his DUI was extremely old, it appeared he may have ongoing substance abuse issues that impaired his ability to parent the children.
The juvenile court also found there was not a substantial probability the children could be returned to parental custody after an additional period of reunification services. As to father, it stated:
"[W]hile [father] has made some progress, he really has not made substantive progress in resolving the issues. Substance abuse issues are an ongoing concern, especially for these two children who have been subjected to significant abuse and neglect. And given the fact that the father has most recently tested positive for alcohol again as well as THC, the fact that he has not regularly participated with regard to the components of his case plan, which were minimal at best, and he has not made substantive progress, the Court finds that there is not a substantial likelihood the children could be returned to the care of the father if services were continued to the 12-month juncture. And given his lack of substantive progress, the Court will terminate his reunification services as well as the mother's reunification services at this time."
The juvenile court set a section 366.26 hearing for June 23, 2020. This petition ensued.
DISCUSSION
Father contends the children should have been returned to his custody at the six-month review hearing because he established a home for them, completed his case plan objectives and successfully raised a daughter to adulthood. He argues the evidence on which the juvenile court relied in finding detriment; i.e., his failure to protect the children from mother's violence, his marijuana and alcohol use and his 10-year-old arrest for DUI, was insufficient. He further contends the court erred in limiting Jordan's testimony to her knowledge of his substance use to the preceding three years. We find no merit to his claims.
Detrimental Return
California's dependency system is designed "to protect children from harm and to preserve families when safe for the child." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424 (Tracy J.).) During the reunification period of a dependency case, the primary focus is on preserving the family by addressing the issues that led to dependency jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means until reunification services have been terminated, "family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody." (Tracy J., at p. 1424.) Once reunification services are terminated, however, the focus shifts to finding the child a safe and permanent home. (Ibid.)
At each review hearing, "there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court, therefore, must return the child to parental custody at the six-month review hearing unless it finds by a preponderance of the evidence that doing so would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1).) It is the agency's burden to prove the child would face some actual, nonspeculative risk if returned to parental custody. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).)
A parent's failure to participate regularly and make substantive progress in court-ordered treatment programs constitutes prima facie evidence that return would be detrimental. (§ 366.21, subd. (e)(1).) Technical compliance with court-ordered services, though significant, is not conclusive evidence a parent does not pose a risk of detriment to his or her child. It simply means there was not prima facie evidence of detriment. The court must still consider whether the parent eliminated the conditions leading to the child's removal and whether the child would be safe in parental custody. (See, e.g., In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
"In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement." (Yvonne W., supra, 165 Cal.App.4th at p. 1400.)
We review a juvenile court's detriment finding for substantial evidence. (Tracy J., supra, 202 Cal.App.4th at p. 1424.) " ' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.]' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.' " (Ibid.) Further, when reviewing for substantial evidence, we do not inquire whether the evidence supports a contrary finding, but whether substantial evidence, contradicted or not, supports the finding actually made. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925.)
The risk of detriment, in this case, was father's lack of protective parenting and ongoing substance abuse. He was absent from the children's lives prior to their removal despite knowing of mother's propensity for violence. As a result, they suffered severe neglect and physical abuse in her care. Once he became involved in their dependency case, he had the opportunity to assume a parental role for them yet made no effort to meaningfully engage in his services plan until well into the reunification period. Of particular importance, he did not participate at all in substance abuse services, arguably the most important aspect of his services plan, by completing a SUD and submitting to random drug and alcohol testing. Consequently, his argument he completed his case plan objectives even if credited does not mean he did not pose a risk of detriment to the children. Rather, the court could find prima facie evidence of detriment merely on his failure to regularly participate and make substantive progress in his court-ordered services.
Notwithstanding the above, father contends the juvenile court erred in basing its detriment finding on his use of marijuana and alcohol. He relies on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1332 (Jennifer A.) and In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.), neither of which supports his argument.
In Jennifer A., appellate relief was granted from a detriment finding at the 18-month review hearing. (Jennifer A., supra, 117 Cal.App.4th at pp. 1328, 1347.) The mother's five-year-old and 18-month-old sons were removed from her custody because she had left them unattended in a motel room while she worked. (Id. at p. 1328.) Although there was no evidence she had a substance abuse problem, her services plan required her to drug test and complete outpatient treatment if she tested positive. (Id. at pp. 1327, 1331.) After missing several tests and testing positive for alcohol, the mother was required to undergo drug treatment. (Id. at p. 1331.) She subsequently tested positive for marijuana, missed multiple drug tests, was unable to void once and gave diluted specimens on multiple occasions. (Id. at pp. 1342-1343.) However, by the 18-month review hearing, she had substantially complied with the terms of her reunification plan and there was no evidence she used any drugs other than alcohol and marijuana, or that she ever drank alcohol or smoked marijuana around the children. (Id. at pp. 1343, 1345.) She had daily, unmonitored visits with the children, her interactions with them were appropriate and they were happy to be with her. (Id. at p. 1336.) In addition, the social worker continually reported that her parenting skills were improving, and her therapist opined as early as the six-month review that mother was " ' "far removed from ever leaving the children unattended" ' and had learned ' "proper parenting and boundaries of protecting the children." ' " (Id. at p. 1346.)
Here, unlike the mother in Jennifer A., father did not substantially comply with his services plan, he had a history of significant substance abuse, including a DUI in 2010, and an admitted ongoing problem with marijuana. His circumstances do not compel a reversal of the juvenile court's detriment finding.
In G.S.R., the juvenile court terminated the parental rights of a nonoffending, noncustodial father. He argued that his due process rights had been violated because he was a nonoffending parent who had never been found to be unfit. (G.S.R., supra, 159 Cal.App.4th at p. 1209.) The appellate court found that the juvenile court never made a finding of parental fitness as to the children's father; rather the court's findings throughout the proceedings concerned only the children's mother. (Id. at p. 1211.) Further, the court found that all the father's issues with domestic violence and substance abuse had been resolved prior to the filing of the original dependency petition, and the only matter unresolved at the dispositional stage was the father's inability to afford appropriate housing. (Id. at pp. 1213-1215.) The reviewing court found that the father's indigence, standing alone, was not a legitimate basis for deeming the father unfit. (Ibid.)
G.S.R. is not germane here. Unlike the father in that case, father had not resolved his substance abuse issue and indigence was not a factor in the court's decision not to return the children to his custody.
Father further contends the juvenile court erred in restricting Jordan's testimony to her observations of his substance use over the prior three years. He claims the juvenile court's detriment finding was based in part on his 2010 DUI and appears to argue that Jordan's testimony about his substance use during her childhood would diminish the weight of that evidence. We conclude the court properly restricted her testimony.
"The trial court is vested with broad discretion in ruling on the admissibility of evidence. [Citations.] ' "[T]he court's ruling will be upset only if there is a clear showing of an abuse of discretion." ' [Citation.] ' " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " ' [Citation.]" (In re Jordan R. (2012) 205 Cal.App.4th 111, 121.)
We find no abuse of discretion in the juvenile court's rulings. Whether Jordan observed father using drugs or alcohol or observed drugs or alcohol in his home 13 years before is not relevant to whether he had a current issue with drugs and alcohol. Further, father was allowed to pursue the line of questioning, and even assuming the juvenile court erred by sustaining the relevance objections, father has failed to show how he was prejudiced.
We conclude substantial evidence supports the juvenile court's finding it would be detrimental to return the children to father's custody. Since he does not challenge the court's order terminating his reunification services, we do not review it. We affirm the court's order setting a section 366.26 hearing and deny the writ petition.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.