Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452). Valerie Lynn Skeba, Juvenile Court Referee. Petition denied, Los Angeles County Super. Ct. No. CK59722
Law offices of Mary E. Cochran and Mary E. Cochran for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
Children’s Law Center of Los Angeles, Sophia Ali and Genevieve Jones for the Children.
FLIER, J.
Petitioner C.H. (father) is the father of two children, 14-year-old H.H. and 10-year-old J.H., who were originally detained from their mother in California in 2005, and subsequently released to the custody of father, who resides in Tennessee and is divorced from mother. However, approximately one year later, the juvenile court ordered them placed with their maternal grandparents in California after allegations surfaced concerning father’s drug use and involvement in the manufacturing of drugs on his property, among other things. In January 2007, the Los Angeles County Department of Children and Family Services (Department) filed a subsequent dependency petition against father under Welfare and Institutions Code section 342, which the court later sustained.
All undesignated statutory references are to the Welfare and Institutions Code.
Father received family reunification services. At the conclusion of a contested 12-month review hearing, the court terminated reunification services and set a hearing for the selection and implementation of a permanent plan for the children (§ 366.26).
Father filed a writ petition challenging the court’s decision. (Cal. Rules of Court, rule 8.452.) He claims substantial evidence does not support the juvenile court’s findings that (1) returning the children to his custody would place them at risk, and (2) father received reasonable reunification services. The Department and counsel for the children oppose the granting of relief.
We conclude that father’s claims lack merit. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother were divorced in Tennessee in 2001. Sometime after separating from father, mother moved to California. Pursuant to a Tennessee child custody order, the children resided with their mother during the school year and visited their father in Tennessee during the summer and on holidays.
Mother is not a petitioner in this writ proceeding. Therefore, we focus primarily on the facts relating to father.
Between 2001 and 2003, the Department received numerous referrals alleging mother was neglecting or emotionally abusing the children, but the allegations were never substantiated.
Mother overdosed on drugs in 2004 and agreed to receive family maintenance services. In June 2005, the Department detained the children from mother’s custody after receiving reports about additional drug problems involving mother. The Department placed the children in foster care and filed a dependency petition on their behalf.
Both parents appeared at the detention hearing. The juvenile court upheld the detention and ordered that the children remain in foster care.
Approximately one week later, the Department provided the juvenile court with information father had provided regarding his criminal and drug use history. Father admitted that he was involved in a felony murder when he was 15 or 16 years old. He was tried as an adult in New Jersey, was convicted, and was sentenced to life in prison. Father claimed he prevailed in an appeal and was held as a juvenile and not as an adult. Father served 11 years in custody before being released in 1989. Three years later, he was convicted of aggravated assault in New Jersey and served nine months in prison and nine months in a halfway house.
Father also discussed a 2001 allegation--which was never substantiated--that he had sexually abused J.H. Father stated that mother had made the allegation during their divorce proceeding. Father claimed the allegation was false, and no charges were brought against him.
Father admitted that during his divorce proceeding, he was held in contempt of court and served 10 days in jail after he threw over a table in order to get to mother.
Father acknowledged that he started using marijuana when he was 15 years old. His drug use intensified during his incarceration, and included marijuana, cocaine, crystal methamphetamine, and mescaline. Father claimed he stopped using drugs in 1995 when he moved to Tennessee.
The children denied that father had abused them, and they said they wanted to live with him in Tennessee.
At the beginning of July 2005, after father tested negative for drugs, the juvenile court authorized father to take the children to Tennessee.
In August 2005, the Department reported that a representative of the Tennessee Department of Children’s Services (TDCS) had visited father at the trailer where he was residing with the children. The representative found the residence suitable. Father also submitted to a drug test, which came back negative.
The Department also provided a declaration that the children’s maternal grandfather had executed in late 2005, claiming, among other things, that (1) father had attacked his mother with a knife during a funeral in 1993, (2) during family law proceedings in 1999, father and his brother came to the motel where mother and the maternal grandfather were staying with the children and threatened them with guns, (3) father has numerous guns at his Tennessee residence, and (4) father’s mother--who is terrified of father--told the maternal grandfather that drugs were used and manufactured on father’s property.
During a juvenile court hearing in August 2005, the maternal grandfather claimed the paternal grandmother told him father was arrested within the last year for drug possession and for having a methamphetamine lab on his property. The juvenile court ordered the Department to investigate. After the investigation, the Department was unable to confirm the maternal grandfather’s claim. Furthermore, the paternal grandmother denied making the alleged statement to the paternal grandfather.
In November 2005, the juvenile court ordered the Department to initiate an investigation concerning father with Tennessee authorities under the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.).
In January 2006, the Department submitted a report, which included an update concerning the ICPC investigation. The TDCS case manager responsible for the ICPC investigation advised the Department social worker that she would not be able to guarantee the children’s safety because of father’s criminal history, his lack of employment, and his suspended driver’s license.
The TDCS case manager reported that father did not have steady income since June 2004 when he quit working as a truck driver. Father claimed this was due in part to the fact that his driver’s license was suspended because he could not afford to pay a speeding ticket he received in California. Father’s only income was $395 per month in food stamps.
The TDCS case manager reported that father’s parents own the trailer where father resides with the children, and they assist father with his utility and telephone bills. The large trailer has four bedrooms and is on a 33-acre farm, where father’s parents also reside.
When the Department social worker traveled to Tennessee, the children told her they wanted to remain with father.
The Department acknowledged that father had a serious criminal record but noted no recent convictions. And although father was unemployed, he was able to provide for the children. Therefore, the Department recommended that the children remain with father. It also recommended that jurisdiction be transferred to the Tennessee dependency court.
The Department attached to its report a copy of a letter from the TDCS. The letter contained much of the information discussed in the Department’s report. It concluded with a statement that the TDCS was not recommending placing the children with father, noting that “[d]oing so, places California agency and court at risk.” The TDCS recommended that the children “be remanded back to the care of California Department of Children and Family Services.”
In January 2006, the juvenile court ordered that the children continue in their placement with father.
In June 2006, the Department asked the court to order that the children be present in court for the next scheduled hearing in July. The court granted the Department’s request.
The children returned to California and stayed with their maternal grandfather. After their arrival, the Department social worker interviewed them. H.H. disclosed information she claimed she had not provided earlier because she knew father was listening to her telephone conversations with the social worker. According to H.H., she found a drug pipe on father’s coffee table, and when father’s friends came over, father and the friends would go into father’s room with the pipe. H.H. said that when father gets made at her--which apparently happens on a regular basis--he sends her to her room for long periods of time. She reported that father “only smacked her on her hand,” but could not recall how many times this occurred. H.H. said she wanted to live with mother, though she still expressed her love for father. J.H. stated he never saw father hit H.H. He noted that father “yells sometimes when he loses his keys and he is always losing his keys.” He stated that father has been sleeping often since he hurt his foot and, as a result, J.H. “was not getting dinner a lot of the time.” J.H. wants to be with both his parents and could not make up his mind with whom he wished to reside.
In July 2006, the juvenile court ordered that the children remain with their maternal grandfather. The court also ordered the Department to attempt to authenticate a letter from the TDCS that father had provided to the court that day. In late August 2006, the Department reported to the court that the letter was forged.
The juvenile court’s minute order states that the children are to stay with the maternal grandfather. Subsequent orders refer to placement of the children with the maternal grandfather, while others refer to placement with both maternal grandparents. Because both grandparents reside at the same residence, we will refer to placement with both grandparents.
The letter, purportedly signed by a TDCS representative, stated that two case workers had prepared reports concerning father, and “[t]here was nothing in this reports [sic] to cause any concern of endangerment.” The author purported to express the feeling that “[s]omewhere . . . there has been a miscommunication of the assessment done on [father’s] home.”
The Department learned that the TDCS had “denied placement” of the children with father through the ICPC. The Department recommended that the children be returned to the home of mother with continued Department supervision.
The court continued the matter to January 2007 for a contested six-month review hearing for mother. In the interim, the children were to remain with the maternal grandparents. Father was permitted monitored visits while he was in California.
Before the hearing in January 2007, the Department confirmed that law enforcement authorities in Tennessee raided father’s trailer in December 2006, following a five- to six-month investigation. Father, his brother, and a roommate of father had been involved in manufacturing crystal meth. During the raid, authorities found drug paraphernalia and meth chemicals. They also seized, among other things, father’s computer and found a fake driver’s license utilizing the personal information of daughter H.H. The children’s bedrooms tested higher than the other rooms for meth, and father’s room tested positive for cocaine and crystal meth. However, the children had not resided in the trailer for approximately six months.
Father was not present at the scheduled January 2007 hearing, and at his counsel’s request, the court continued the matter for approximately one month.
Shortly after the January 2007 hearing was continued, the Department filed a subsequent dependency petition (§ 342) based on the recent revelations concerning the drug manufacturing material found in father’s home. The juvenile court formally upheld the children’s detention from father in late January 2007.
In February 2007, the Department reported that father was out on bail. During recent interviews, both children said they wanted to live with mother, but if they could not do so, they wanted to remain with their maternal grandparents. J.H. stated he did not want to see father, while H.H. stated that she did not mind seeing father. In light of the new developments, the Department recommended that the court schedule a hearing for the selection and implementation of a permanent plan for the children.
In May 2007, the juvenile court sustained the subsequent dependency petition involving father and ordered the Department to provide father with reunification services. The court ordered father to attend a drug rehabilitation program with random drug testing and to attend individual counseling to address case issues. The children were to remain placed with their maternal grandparents, while both parents were permitted monitored visits.
In August 2007, father began an outpatient drug rehabilitation program and had tested negative for drugs on two occasions. Father was scheduled to begin individual counseling later that month and was scheduled to attend a parenting class.
Before father’s six-month review hearing in November 2007, the Department reported that father had begun individual counseling in Tennessee on the last day of August. In a letter dated mid-October (approximately a month-and-a-half after father began counseling), father’s therapist reported that father had “completed 12 weeks of individual counseling.” He also stated that father had presented certificates reflecting completion of parenting classes and a substance abuse program. The therapist opined that father was “meeting the requirements of the Permanency Plan” and concluded by saying: “It is my recommendation as this time that [father] be granted full parental rights and custody of his two children as there are no current safety issues regarding the children.”
The Department reported that father had completed a substance abuse program, which recommended that he attend AA/NA and undergo random drug tests. Father had tested negative for drugs on six occasions over the previous three months.
The report also noted that father had recently entered a plea in his Tennessee criminal case, and he expected the charges to be dismissed in late December. (The state charges were in fact dismissed, and the juvenile court was so advised.)
The children were doing well in their placement with the maternal grandparents and said they did not want to live with father, but would like to visit him.
At the conclusion of the six-month review hearing, the juvenile court ordered six additional months of services for father.
Both children were doing well with their maternal grandparents, who were willing to adopt them. The children spoke to father twice per week by phone. They stated they would like to visit with father if he was drug free, though H.H. stated she wanted any visits to be monitored.
The Department recommended terminating reunification services for father and scheduling a hearing for the selection and implementation of a permanent plan for the children.
The Department submitted some additional information to the court by way of “last minute information” forms submitted on the day of the scheduled 12-month review hearing at the end of May 2008. That information included, among other things, documentation concerning father’s felony-murder and aggravated assault convictions in 1983 and 1994, respectively; a copy of the Tennessee state court’s 2002 order holding father in contempt for, in the Tennessee court’s words, “throwing a table and almost hitting the Judge and yelling and destruction of public property”; and four negative drug test results for father between January and May 2008, as well as a certificate reflecting father had completed an eight-session parenting class.
At the May 2008 hearing, the maternal grandfather stated he had a note from H.H., who had “issues” with father when she was in Tennessee. The grandfather stated H.H. did not want to see father. In response to a request from father’s counsel that father be allowed to visit with the children while he was in California, the court authorized father to have monitored visits with J.H. and ordered that any visits with H.H. take place in a therapeutic setting. The court also ordered counseling for H.H.
Shortly before the contested hearing in July, the Department reported that father had completed court-ordered reunification services. Father’s therapist in Tennessee advised that father had completed 16 individual counseling sessions, as well as parenting and substance abuse programs. Since the last court hearing, father had maintained almost daily contact with the Department social worker.
Two Department social workers visited the maternal grandparents’ home in June and met with the children. H.H. stated very emphatically that she did not want anything to do with father. She wanted to continue living with her grandparents. J.H. also wanted to live with his grandparents, though he stated he wanted to visit with his father.
The contested 12-month review hearing took place in mid-July 2008. The court noted there was no issue about father not being in compliance with the case plan. The only issue was whether the children could safely be returned to his custody.
No party called any witnesses, and the contested hearing proceeded based solely on various Department reports, which the juvenile court admitted into evidence.
In closing arguments, father’s counsel argued that father had complied with the case plan and the children should be returned to his custody. Father’s counsel never questioned the reasonableness of the services father received, though he noted that father had not yet had any conjoint counseling sessions with H.H.
The juvenile court then found that returning the children to father’s custody would create a substantial risk of detriment to their physical/emotional health and safety. The court acknowledged that father had complied with the case plan, but it noted that the children had issues with father and did not want to live with him. The court explained: “This is not children willfully refusing to go to a parent that they just don’t like. These children have serious issues about what has happened to them. And because father is ready to parent them does not necessarily mean that the children are ready to be parented by father.” The court also noted that “[t]his is a case where we would need supervision [through the ICPC] given the events that happened in Tennessee.” Because the state of Tennessee had already declined to approve supervision under the ICPC, there was a real question whether such supervision would be approved.
Although some of the court’s comments at the hearing could be construed as suggesting ICPC supervision is required whenever a child is placed with an out-of-state parent, the more plausible construction is that the court merely believed that, under the facts of this case, such supervision would have to be provided if the court were to consider returning the children to father’s custody. (See In re John M. (2006) 141 Cal.App.4th 1564, 1572-1575 [ICPC supervision not required before child is placed with an out-of-state parent, though “ICPC also permits a sending public agency to enter into a voluntary agreement with ‘an authorized public or private agency in the receiving state’ for the performance of services related to the case by the agency in the receiving state”].)
The court found the Department had provided reasonable reunification services to father and father had complied with the case plan. The court also found there was little likelihood the children could be returned to father by the 18-month review date, which was only two weeks away. The court terminated reunification services for father and scheduled a hearing for the selection and implementation of a permanent plan for the children.
Father filed a writ petition challenging the juvenile court’s order. He claims substantial evidence does not support the juvenile court’s findings that (1) returning the children to his custody would place them at risk, and (2) father received reasonable reunification services.
The Department filed an answer opposing the granting of relief. Counsel for the children filed a joinder in the Department’s answer.
DISCUSSION
1. The Standard of Review.
We review the juvenile court’s findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) In so doing, we must resolve all conflicts in support of the court’s determination and indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
2. Substantial Evidence Supports the Juvenile Court’s Finding That Returning the Children to Father’s Custody Would Create a Substantial Risk of Harm to Them.
Section 366.21, subdivision (f), provides that, at the 12-month review hearing, “[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”
A parent is generally accorded 12 months of reunification services for a child who was three years of age or older when first removed from that parent’s custody. (§ 361.5, subd. (a)(1).) However, services can be extended up to a maximum of 18 months from the date of the initial removal, but only if the juvenile court finds there is a substantial probability the child will be returned to the parent by the next review period. (§§ 361.5, subd. (a), 366.21, subds. (e), (g).) Here, the juvenile court found there was no substantial probability the children could be returned to father’s custody by the 18-month review period. Father does not challenge this finding in his petition. Considering that the 18-month review hearing was fast approaching, we can understand why father does not challenge this finding.
Father claims the juvenile court’s finding that returning the children to his custody would create a substantial risk of detriment to them is not supported by substantial evidence. We disagree.
Father raises several points in support of his argument. He notes that father was not the offending parent when the children were first removed from mother’s custody. We fail to see the relevance of this fact, as the issue is whether there was substantial evidence to support a finding the juvenile court made approximately three years after the children were removed from mother’s custody. That finding was based on information that came to light after the children were detained from mother’s custody. And while some of that information concerned events that occurred before the filing of the original petition against mother (e.g., the felony murder and other violent conduct by father), there was considerable evidence father subsequently engaged in conduct that placed the children at substantial risk (e.g., his arrest on charges of manufacturing crystal meth at his residence; the high level of meth in the bedrooms; H.H.’s allegations regarding father’s drug use; the children’s reports regarding father’s anger issues; the forged TDCS letter father provided to the juvenile court; and the fact that TDCS would not, in all probability, provide supervision while the children lived in Tennessee). Considering father’s prior history, the juvenile court had good reason to be concerned about these relatively recent developments.
Father notes that the TDCS found “no issues” when its representative visited father’s residence shortly after the children were placed with him. However, this, too, is not the issue. First, this initial assessment was based primarily on the physical suitability of father’s residence. Second, the assessment was made before father was arrested on charges relating to the manufacturing of drugs on his property. Finally, we note that even before this arrest, the TDSC opined that the children should not be placed with father, stating that “[d]oing so, places California agency and court at risk.” Thus, if anything, the assessment of the TDSC is consistent with the juvenile court’s ruling.
Father also cites the fact that the children did not express a desire not to live with him until after they returned to California. Before addressing this point, we note that the children’s wishes, while relevant, are not dispositive. There is no guarantee the juvenile court would have found the children could be returned to father’s custody even if they had expressed a desire to live with him.
Father’s point appears to be based on an unstated assumption that the children were somehow manipulated into changing their minds about living with him after they returned to California; however, there is no evidence to support such a suggestion. Moreover, there are several other explanations (besides manipulation) that could account for the apparent shift in the children’s views after they returned to California. First, there is some question whether the children felt free to express their true feelings while they resided with father. Indeed, as discussed above, H.H. stated there had been some things she withheld from the Department’s social worker because she knew father was listening to her communications. Second, once the children returned to California, they were entitled to reassess their experiences with father and their thoughts about living with him. Living with their maternal grandparents may have provided the children with perspective and more insight into their situation. Finally, the raid on father’s property--which took place after the children returned to California--may have played a role in the children’s thinking.
We also note that the children’s counsel joins in the Department’s opposition to father’s petition. (See § 317, subd. (e) [“The counsel for the child shall be charged in general with the representation of the child’s interests. . . . Counsel for the child shall not advocate for the return of the child if, to the best of his or her knowledge, that return conflicts with the protection and safety of the child”].)
Thus, there is every reason to believe the children’s desire not to live with father is sincere.
Father also claims the juvenile court “erred in its finding that the children were removed from Tennessee [in approximately June 2006] at the request of Tennessee because of their refusal to approve an ICPC for placement with the father.” As a technical matter, the juvenile court made no “finding” on the issue. Moreover, we fail to see how the court’s belief about something that happened in June 2006 has any bearing on the finding at issue in this writ proceeding. Whether the children were returned to California in June 2006 because of a TDCS request or for some other reason is irrelevant to the question whether substantial evidence supports the juvenile court’s finding in July 2008 that returning the children to father would place them at risk.
Moreover, even if the children were not returned to California in direct response to a TDCS request, it is clear that TDCS believed the children would be at risk with father, and TDCS’s written opinion on the issue was before the juvenile court when it ordered the children to remain with their maternal grandparents in California in the summer of 2006.
Finally, although he does not make the argument in his writ petition, father appeared to claim before the juvenile court that the children should be returned to his custody because he had complied with the case plan. While father’s compliance with the case plan is certainly relevant, it is not enough to compel reversal of the juvenile court’s decision. “The fact [a parent] satisfied the requirements of the reunification plan does not mean [the parent] was entitled to custody of the minor regardless of the substantial risk of detriment that reunification would have on the minor’s emotional well-being.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 901; see also In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143 [“simply complying with the reunification plan by attending the required therapy sessions and visiting the children . . . is not determinative”].)
In this case, there was substantial evidence to support the juvenile court’s finding that returning the children to father’s custody would place them at risk.
2. Father May Not Complain About the Reasonableness of the Reunification Services He Received. In Any Event, Substantial Evidence Supports the Juvenile Court’s Finding That Father Received Reasonable Services.
Father also claims substantial evidence does not support the juvenile court’s finding that the Department provided him with reasonable reunification services. However, as discussed above, at no time during the contested hearing (or before) did father complain he had not received reasonable services. Having failed to object to the reasonableness of the services at any time during the juvenile court proceedings, father cannot be heard to complain about those services for the first time in this writ proceeding. (See In re Kevin S. (1996) 41 Cal.App.4th 882, 885; see also In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Even if we were to consider father’s contention on the merits, we would conclude that the juvenile court’s finding is supported by substantial evidence. The only fact father cites in support of his contention that he did not receive reasonable services is that a status review report the Department submitted in late May 2008 did not reflect any direct contact with father during the previous reporting period. As discussed above, this issue was raised by father’s counsel at the May 2008 hearing, when he complained that father’s calls to the Department social worker had not been returned. Counsel for the Department explained that one call between father and the Department social worker had to be terminated because of a “breakdown in communication.” The court addressed this issue and directed father to communicate with the supervising social worker. Moreover, the record reflects that there were many communications between father and the Department during the entire reunification period.
Father makes no mention of all the services he received from the Department. Notwithstanding the fact that father resides in Tennessee, he received all the court-ordered services designed to help him reunify with the children. He completed all the individual counseling sessions that were scheduled, and the Department social worker communicated with father’s therapist in Tennessee on a regular basis. Father also completed parenting and substance abuse programs.
In short, there was more than enough evidence to support the juvenile court’s finding that the Department provided father with reasonable reunification services. Father’s failure to reunify with the children was not due to insufficient or inadequate services.
Disposition
The writ petition is denied on the merits. This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: RUBIN, ACTING P. J. BIGELOW, J.