Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J-07-01596
Margulies, J.
C.D. (Father) challenges an order of the Juvenile Division of the Contra Costa County Superior Court, entered June 3, 2009, which set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor V.D. (born June 2007). He challenges the juvenile court’s “risk of detriment” finding and claims the juvenile court erred when it excluded the testimony of a paternal aunt relating to her request for relative placement. As discussed below, we conclude there was no prejudicial error and deny Father’s petition on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
I. Background
On August 24, 2007, the Contra Costa County Bureau of Children and Family Services (Bureau) filed a petition to establish the minor as a dependent of the juvenile court. Not long afterward the juvenile court entered an order detaining the minor, and on September 4, the Bureau removed the minor from her parents’ physical custody.
On September 7, 2007, the juvenile court established dependency jurisdiction as to T.J. (Mother) sustaining amended allegations under section 300, subdivision (b), stating she “ha[d] been involved in domestic violence which occurred in the presence of the child on at least one occasion.” The court established jurisdiction as to Father on October 5, when he stipulated to amended allegations under section 300, subdivision (b), to the effect that he had “a history of substance abuse that impairs his ability to provide adequate care and supervision of the child,” and had “engaged in episodes of domestic violence which places the child at risk of harm.”
The court ordered reunification services for both parents at the conclusion of its dispositional hearing on October 30, 2007, adopting the Bureau’s proposed case plans and directing the parents to comply with them. Father’s case plan called for him to complete a domestic violence program, an anger management class, and a parenting class. In addition he was required to comply with random drug testing, attend two Alcoholics Anonymous (AA)/Narcotics Anonymous (NA) meetings per week, and complete an outpatient substance abuse treatment program in the event he tested positive for illegal drug use. He was also required to complete a mental health assessment and comply with its recommendations; if the assessment called for psychological evaluation, he was to complete the evaluation and follow its recommendations.
The juvenile court continued services for both parents at the six-month status review hearing completed on March 4, 2008. It appears the court vacated the contested 12-month permanency hearing on November 4, 2008, at which time it also ordered both parents to submit to a psychological evaluation and directed that their services continue. At the 18-month permanency review hearing (the 18-month hearing), held on February 24, 2009, the court terminated services as to both parents and set the matter for a hearing under section 366.26. Father’s counsel, however, moved successfully to set this order aside. At the conclusion of a second contested 18-month hearing on June 3, 2009, the court again terminated services and set the matter for a section 366.26 hearing. This petition followed. (§ 366.26, subd. (l).)
II. Discussion
A. Risk of Detriment
At the 18-month hearing, the juvenile court must order the return of the child to the physical custody of his or her parent “unless the 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.” (§ 366.22, subd. (a).) Here the juvenile court made the finding that returning the minor to Father’s custody would create a substantial risk of detriment to her physical or emotional well-being.
Father challenges this finding, suggesting the juvenile court disregarded evidence that he “satisfactorily met the requirements of his case plan.” He points to comments the court made at the time of its ruling, to the effect that Father had not “address[ed] the underlying reasons as to why we’re here in the first place,” and had not shown “sufficient honesty and candor.” In Father’s view such comments reflect an “inordinate” emphasis on Father’s “refusal or inability to accept his past history,” and a decision based not on the evidence but on “suspicion, imagination, speculation or conjecture.”
Our review of the challenged finding is limited to whether it is supported by substantial evidence. We view the evidence in the light most favorable to the juvenile court’s ruling, resolving conflicts and indulging all reasonable inferences in its favor. (In re Kristin W. (1990) 222 Cal.App.3d 234, 251.)
The Bureau’s assigned caseworker (caseworker) reported that Father had completed his 52-week domestic violence program in February 2009, but the program’s facilitator had also stated that Father initially “did not take ownership of his domestic violence history” and he continued to minimize his role in the domestic violence incident that precipitated the Bureau’s intervention. Father had also missed many of the group sessions, and the facilitator had repeatedly warned him that excessive absences could result in his being dropped from the program. Father’s individual therapist terminated his therapy in November 2008, because of inconsistent attendance. At that time, Father told the caseworker he would seek therapy from another provider, but as of February 2009, he remained on a waiting list and had not resumed therapy. The caseworker noted Father had completed a 20-hour anger management course and a parenting education course in December 2007, but during the period under review had missed a number of drug tests and had failed to provide evidence of his attendance at 12-step group meetings. When Father later submitted a document showing his recent attendance at NA meetings, the caseworker testified to her belief that the document was false.
The caseworker also expressed concern that Father had reported having five other children, yet the fact that he was not in contact with them and did not provide for their support suggested he would not be able to provide continuous parenting for the minor in the long term. Based on her experience and training, she opined that the minor would not be safe if she were to be returned to Father’s custody, because Father’s judgment and insight were often “faulty.” In particular, Father’s failure to acknowledge his criminal history, his history of domestic violence with Mother, and the fact that he became involved with Mother when she was in her early teens was “disquieting” and made it “probable” that Father would repeat such actions in the future.
Father’s criminal history, detailed in one of the reports, included felony convictions for cruelty to animals and possession of cocaine for sale, as well as three misdemeanor convictions including infliction of corporal injury on a spouse or cohabitant.
On cross examination, Father maintained that he had never been physically or emotionally abusive to any of his romantic partners. When asked to explain his reported history of domestic violence incidents between 1995 and 2007, Father said the “real truth” was that all his partners who had reported these incidents had “lied on me.”
The foregoing evidence, viewed in the light most favorable to the juvenile court’s ruling, is sufficient to support the court’s finding by a preponderance of evidence that a return of the minor to Father’s custody would create a substantial risk of detriment to the minor’s safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a).) The caseworker’s conclusions regarding the risk posed by Father’s “faulty” judgment and insight were not mere speculation but rather the considered opinion of an experienced professional social worker. We conclude the challenged finding was supported by substantial evidence. Although Father may have completed substantial portions of his case plan, this did not entitle him to regain custody regardless of a substantial risk of detriment to the minor. (See In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)
B. Substantial Probability of Return
Father argues the juvenile court ignored evidence that would have supported findings under section 366.21, subdivision (g). He appears to urge that the court should have concluded that Father had resolved the problems that led to the minor’s removal, had completed the objectives of treatment plan, and had demonstrated an ability to provide for the minor’s safety, protection, and well-being.
This argument has no merit. Section 366.21, subdivision (g) has no application at an 18-month hearing. It delineates the findings necessary at the 12-month permanency hearing in order to extend services beyond that hearing. Nor does the record indicate that Father requested or argued that the juvenile court should make similar findings under the applicable provisions of section 366.22 in order to extend services beyond the 18-month hearing.
A juvenile court may extend services beyond the 18-month hearing—for no more than 24 months from the date of the minor’s initial removal—if it finds either that there is a substantial probability that the child will be returned to the physical custody of his or her parent within the extended period of time or that reasonable services were not provided to the parent. To find there is a substantial probability that the child will be returned within the extended period of time, the court must find that the parent has consistently and regularly contacted and visited with the child, has made significant and consistent progress in the prior 18 months in resolving problems that led to the child’s removal, and has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs. (§ 366.22, subd. (b).) As noted above, the minor in this case was initially removed September 4, 2007. We observe that, if Father had requested an extension of services for up to 24 months from that date, the court, at the conclusion of the 18-month hearing on June 3, 2009, could have ordered no more than three additional months of services.
The gist of Father’s argument seems to be that the juvenile court should have returned the minor to his custody at the 18-month hearing. Our review, however, is limited to findings and orders that the court did make. We have reviewed the court’s risk of detriment finding above and have concluded it was supported by substantial evidence. There is nothing more to review on the issue of whether the court erred in failing to return the minor to Father’s custody.
C. Exclusion of the Paternal Aunt’s Testimony
At the outset of the 18-month hearing, Father’s counsel stated that he intended to call a paternal aunt of the minor as a witness, “on the issue of whether or not she submitted a form to have the child placed with her.” Counsel for the Bureau objected to this testimony on relevancy grounds. The court inquired as to the relevance of the aunt’s prior application for placement, and Father’s counsel responded that it went to the issue of whether the Bureau had failed to provide reasonable services. She urged, in essence, that the aunt had applied for relative placement in October 2008, “so that she could assist” Father, and had the Bureau made this placement, it would have “avoid[ed] placing [the minor] away from [Father],” and there would have been “adequate services... to allow [F]ather to complete his case plan.” The court concluded that the paternal aunt’s testimony was not relevant to the issues to be decided at the 18-month hearing, and excused her as a witness.
Father claims the juvenile court erred in excluding this testimony. We review the challenged ruling for abuse of discretion. (See City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)
Father’s offer of proof with respect to the relevancy of the paternal aunt’s testimony was apparently directed to the adequacy of services offered or provided to him by the Bureau during the period under review. Here, the juvenile court ordered services for Father at the dispositional hearing held October 30, 2007. When a relative requests that a minor in out-of-home custody be placed with him or her, the request must be given “preferential consideration.” (§ 361.3, subd. (a).) In determining whether such placement is appropriate, the agency and the court must consider, among a number of other factors, the ability of the relative to “[f]acilitate court-ordered reunification efforts with the parents.” (§ 361.3, subd. (a)(7)(E).) In this case, however, it does not appear that either at the dispositional hearing or at any time prior to the 18-month hearing Father ever raised any objection to the adequacy of his services on grounds that the Bureau failed to facilitate his reunification efforts by placing the minor with the paternal aunt. The paternal aunt did not even apply for relative placement until October 2008, after Father had already received 12 months of services without objection to the minor’s foster care placement. Finally we note that, by the time of the 18-month hearing, the lack of reasonable services is relevant only when an extension of services is sought. (See fn. 4, ante.) At no point did Father request such an extension of services, as distinguished from his argument that the minor should be returned immediately to his custody.
A Bureau report admitted at the 18-month hearing noted the paternal aunt requested placement on October 13, 2008, and returned the application sent to her but “did not follow through with the next steps for placement.”
Evidence is deemed relevant if it has any tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Given the foregoing circumstances, it appears to us that the court acted well within its discretion when it concluded, essentially, that the paternal aunt’s testimony—concerning a purported failure on the Bureau’s part to act promptly on a relative placement request made in October 2008—did not in reason have a tendency to prove that the Bureau failed to offer or provide Father with reasonable services during the period under review at the 18-month hearing held June 3, 2009. We conclude there was no abuse of discretion in excluding the testimony.
III. Disposition
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur: Marchiano, P.J., Dondero, J.