Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Frank Dougherty, Judge. (Retired Judge of the Merced S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. JP000076A
C. Logan McKechnie, for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, Acting P.J., Gomes, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son J.H. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In August 2009, then 17-month-old J.H. and his newborn sister, J.W., were removed from the custody of their mother because she abused drugs and alcohol and was transient. The social services agency (agency) placed the children in the home of Mr. and Mrs. C., where they would remain throughout these proceedings. The mother identified petitioner and Larry W. (Larry) as alleged fathers of both children. Petitioner’s whereabouts were initially unknown.
The children will be referred to by their first and last initials because of the uniqueness of their names. (Cal. Rules of Court, rule 8.401(a)(2).)
The mother did not file a writ petition.
In September 2009, the juvenile court exercised its dependency jurisdiction and provided the mother six months of reunification services. The court also found that Larry was J.W’s presumed father and offered him reunification services as well. However, the mother and Larry did not comply. Consequently, the court terminated reunification services as to both the mother and Larry at the six-month review hearing in March 2010, and set a section 366.26 as to both children. In the interim, the agency had contact with petitioner and received genetic test results indicating he could not be excluded as J.H.’s biological father.
In June 2010, at the section 366.26 hearing, petitioner appeared for the first time and the juvenile court deemed him to be J.H.’s presumed father. The court continued the section 366.26 hearing to July 2010, and ordered the agency to arrange supervised visitation for petitioner and J.H. The following August, the court terminated the mother and Larry’s parental rights as to J.W. and designated Mr. and Mrs. C. as J.W.’s adoptive parents.
In September 2010, the juvenile court approved a plan of reunification for petitioner that required him to complete a parenting program, as well as assessments for anger management and substance abuse treatment and to submit to random drug testing. Among his service objectives was the requirement that he demonstrate his ability to apply the skills and knowledge he received from the parenting program. The court set the six-month review hearing for March 2011.
Over the course of the ensuing six months, petitioner completed the tasks required by his services plan but was not able to establish a relationship with J.H. During their first visit together in August 2010, J.H. cried and hid behind Mrs. C. when petitioner tried to approach him. When Mrs. C. left them alone, J.H. cried so hard that he made himself sick. This behavior continued and petitioner blamed the agency for causing J.H.’s fear. He criticized the agency for leaving J.H. alone with him and stated he did not want to be left alone with J.H. In December 2010, petitioner began bringing his nine-year-old son and six-year-old daughter, J.H.’s half-siblings, to the visits and the agency increased visitation to twice a week. However, J.H. would not make eye contact with petitioner or consume the snacks and drinks petitioner gave him, nor would he speak to or play with petitioner and his (J.H.’s) half-siblings. In March 2011, petitioner was asked what could have been done to improve his relationship with J.H. He said he should have been able to take J.H. to his home so they could have done everything together. Petitioner believed that, over time, J.H. would adjust.
In its report for the six-month review hearing, the agency recommended the juvenile court terminate petitioner’s reunification services and set a section 366.26 hearing. The agency questioned the depth of petitioner’s relationship with J.H. before J.H.’s removal. According to the mother, J.H. was born while she was a resident in an inpatient substance abuse treatment program. After J.H.’s birth in March 2008, she and petitioner lived together for four months and then parted ways. In August 2008, petitioner was arrested for assault and incarcerated from November 2008 to January 2009. Petitioner and the mother gave conflicting accounts of petitioner’s contact with J.H. subsequent to petitioner’s release. Petitioner said that he reestablished contact with the mother and J.H. in January 2009 and they visited him in his home for several hours no less than once a week until June 2009. However, he previously stated that he had no contact with J.H. after January 2009. The mother stated that she and J.H. last had contact with petitioner in February 2009.
In the agency’s opinion, the absence of an established relationship explained why J.H. was fearful of petitioner and regarded him as a stranger. In contrast, J.H. interacted actively and happily with Mr. and Mrs. C. and readily accepted and displayed affection from and toward them. The agency did not believe the emotional distress J.H. displayed during visitation with petitioner would decrease if he were separated from his foster parents or that he would adjust if given time. Under the circumstances, the agency opined it would be detrimental to return J.H. to petitioner’s custody.
Petitioner challenged the agency’s position and recommendations and, in March 2011, the juvenile court conducted a contested six-month review hearing. Social worker Janice Martin described J.H.’s refusal to interact with petitioner and testified that J.H. expressed fear of him. She acknowledged, however, that petitioner appropriately parented his son and daughter and that he related to them as he did with J.H.
The court asked Ms. Martin if she ever discussed with petitioner his demeanor when he entered the visitation room. She said that she had and added that petitioner did not smile or greet J.H. with excitement when he saw him. She described petitioner as “very complacent.” She encouraged him more than once to smile and show excitement. Petitioner explained that it was not his nature to smile very much. On further questioning by the court, Ms. Martin stated that petitioner customarily entered the visitation room, picked J.H. up and greeted him but did not converse much with him. She said petitioner smiled and spoke to his daughter (J.H.’s half-sister) during the visits in a normal, parent-like manner and she was affectionate and interacted with him. J.H. witnessed his half-sister hugging and interacting with petitioner multiple times but was unfazed.
Mrs. C. testified that J.H. called her “mama” and Mr. C. “daddy.” She said she was willing to adopt J.H. and was in the process of adopting his siblings, J.W., who J.H. referred to as “sissy, ” and J.H.’s five-month-old brother, who J.H. referred to as “baby brother.” She described J.H. as a “very happy, outgoing little child” who talked a lot and was very loving. However, she noticed a drastic change in his demeanor once he started visiting with petitioner. She said he returned from their visits very upset and would lie around crying.
At the conclusion of the hearing, the juvenile court found that returning J.H. to petitioner’s custody would place J.H. at a substantial risk of detriment and that petitioner failed to make substantive progress in his court-ordered plan. In so finding, the court placed great weight on petitioner’s failure to satisfy the service objective that he demonstrate the ability and skills learned in his parenting class during supervised visitation. The court stated:
“[Petitioner] knows how to establish a relationship with a child.…[H]e has received counseling from the social worker in this case about what would help him establish a relationship with the minor … when he comes to visits. But apparently his response is that’s the way I am. I don’t smile. I don’t have a lot of affection. And even though he was told that that’s how he should get to know the child and loosen things up, he apparently has decided … that he wasn’t going to do that.
“And … the court believes that … he should have done that. He could have … come up with a lot of different ways to engage that child, and I think I covered a little bit of it with the social worker suggesting perhaps that the two children play by themselves for a while. Then he could enter into it some kind of a way where he would be interacting with the child that he had [a] relationship with. But apparently he made no efforts to do that, or anything else. And so I’m satisfied that he has not complied with that particular objective.”
The juvenile court also found there was not a substantial probability J.H. could be returned to petitioner’s custody, terminated petitioner’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court erred in finding it would be detrimental to return J.H. to his custody. He claims the evidence does not support such a finding. He also claims the court erroneously shifted the burden from the agency to him to devise ways in which to improve his relationship with J.H. He prays this court will order the juvenile court to return J.H. to his custody. We find no error and will not grant relief for the reasons we now explain.
There is a presumption at the six-month review hearing, operative at the other review hearings as well, that the minor child will be returned to parental custody “unless the juvenile court finds, by a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§§ 366.21, subds. (e) & (f); 366.22, subd. (a).) The parent’s failure to participate regularly and make substantive progress in a court-ordered treatment program is prima facie evidence that return would be detrimental. (§ 366.21, subd. (e).) In assessing the detriment of return, the court must consider the parent’s efforts and progress. (Ibid.) The agency bears the burden of establishing detriment. (Ibid.)
On a challenge to the sufficiency of the evidence to support the juvenile court’s finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citations.]” (Ibid.) If the finding or order is supported by substantial evidence, it will be upheld. (Ibid.)
Substantial evidence supports the juvenile court’s finding petitioner failed to make substantive progress in his reunification plan. After six months of visitation, J.H. refused to interact with petitioner in even the most basic of ways such as making eye contact and speaking, and petitioner does not deny the reality of the situation. Rather, he appears to blame the agency for not doing more to help improve it. In essence, he is challenging the reasonableness of the agency’s efforts to facilitate reunification without expressly raising it as an issue. However, even if he raised it, it would fail. The appellate record reflects that the social worker continually monitored visitation with a view toward enhancing petitioner’s relationship with J.H. She suggested ways in which petitioner could engage J.H. and frequently sought his suggestions. Thus, petitioner was provided reasonable services. He simply failed to demonstrate an ability to parent J.H. Because petitioner failed to make substantive progress in this essential aspect of his reunification plan, there is prima facie evidence that returning J.H. to his custody would place J.H. at risk of detriment.
Further, there is objective evidence on the record that J.H. was suffering emotionally as a result of mere contact with petitioner. According to Mrs. C., J.H., ordinarily a happy, active child, lay around crying following their visits. It is clear that J.H. has a strong emotional bond with Mr. and Mrs. C. that prevented petitioner, despite perhaps his best efforts, from developing a parent/child relationship with J.H.
We conclude substantial evidence supports the juvenile court’s finding that J.H. could not be returned to petitioner’s custody without it being detrimental to his emotional well-being. Accordingly, we find no error in the court’s finding or its orders terminating petitioner’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.