Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 2513402
NICHOLSON, J.
David K. (petitioner), the father of the minor, seeks an extraordinary writ to vacate orders of the juvenile court entered at the 12-month review hearing terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Petitioner contends it was error to terminate his reunification services. Disagreeing with this contention, we deny the petition.
Further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The minor was first made a dependent of the juvenile court in 2004, after she was born with methamphetamine in her system. Petitioner successfully reunified with the minor, and dependency jurisdiction was dismissed in May 2005.
In December 2006, the Shasta County Department of Social Services (DSS) filed a new petition concerning the minor (then two and a half years old) after she was found wandering in the parking lot of a motel without supervision and petitioner was discovered asleep in a room in which a glass pipe used for smoking methamphetamine and a bottle of Vicodin were discovered. The minor “had a serious case of head lice” and reported that petitioner wrote on her “bottom” with a pen when he was mad at her. Red felt-tip pen marks were visible on the minor’s buttocks.
In March 2007, the juvenile court sustained the allegations in the petition and ordered reunification services for petitioner, which included a substance abuse assessment and a parenting class, and required petitioner to demonstrate that he had acquired parenting information.
An interim report two months later reported that petitioner was visiting the minor, was active in parenting class, and was participating in outpatient substance abuse treatment and Alcoholics Anonymous. Petitioner’s girlfriend, with whom was living, also was participating in services. However, concerns remained regarding petitioner’s prescription drug use and his potential for relapse, as well as the minor’s “emotional health and attachment issues.”
According to the report for the six-month review, petitioner and his girlfriend had fallen asleep during a visit in July 2007 and a bottle of prescription medication fell out of petitioner’s pocket when he woke up. Petitioner explained that he had been at the hospital earlier for injuries sustained during an assault. The social worker expressed concern that petitioner and his girlfriend took prescription medications for pain and other medical conditions. Consequently, DSS began monitoring petitioner’s visits. Meanwhile, petitioner completed the parenting education class he had been attending.
A psychological evaluation in July 2007 contained a recommendation that petitioner continue in substance abuse services and that he attend a “social skills group,” as he appeared to be “unaware of his impact on others.” The evaluator noted that petitioner had not derived much benefit from parenting classes and he was not a good candidate for insight-oriented therapy, but that he could benefit from a very structured parenting group and “short-term cognitive-behavioral therapy” that focused “on his maladaptive thinking patterns.”
It was also recommended that petitioner be referred to an orthopedic surgeon to determine whether his physical problems could be resolved, in order to alleviate his need for pain medication.
While the review hearing was pending, petitioner spanked the minor at a visit because she had “soiled herself,” and visits were changed from being monitored to fully supervised. At another visit, petitioner appeared to be sleeping, although he maintained he was praying for a friend.
Petitioner was referred for individual and couples therapy and to a parenting education program that would provide hands-on instruction during visits. The social worker noted that continuing concerns about petitioner’s use of prescription medications still required resolution in view of his history of substance abuse and the risk of relapse.
At the six-month review hearing in November 2007, petitioner’s reunification services were continued.
Shortly after the review hearing, the social worker was informed that petitioner’s girlfriend had been terminated from her driving under the influence program due to her failure to maintain sobriety, and petitioner reportedly stole merchandise from a furniture store. In December 2007, petitioner tested positive for opiates on two occasions and claimed he had received a shot of morphine at a hospital for a migraine. When asked if he had taken any medication that was not prescribed to him, he admitted taking unprescribed morphine.
Petitioner later admitted this but maintained he subsequently returned to the store and paid for the merchandise.
Petitioner and his girlfriend separated. The social worker scheduled a meeting with petitioner to review his current medications, but petitioner did not show up. He later provided a list of his medications but no documentation explaining the positive tests for opiates.
During a visit in late December, petitioner used the restroom and, about 15 minutes after returning to the visit, his “behavior began to change” and his “functioning appeared impaired,” in that he exhibited signs of being under the influence. Petitioner was told that future visits would be cancelled if there was a suspicion that he was under the influence of medication or illegal drugs, and petitioner cancelled a visit two days later. Petitioner thereafter made no marked improvement in parenting skills.
Meanwhile, the minor had received “an initial diagnosis of Reactive Attachment Disorder,” a disorder that “interferes with a child’s ability to form stable attachments with care providers.” The minor was considered “at high risk for developing serious psychological problems in the future due [to her] history of prenatal drug exposure, history of neglect, and history of multiple caregivers.” She required “a stable, nurturing environment and consistent, dependable parenting to promote healthy psychological development” and to “provide her a sense of security and stability.”
Reports regarding petitioner’s visits contained concerns about his understanding of the minor’s needs and appropriate discipline, his acceptance of the minor, the quality of his engagement with the minor and his emotional state while interacting with her. For example, he repeatedly reprimanded the minor for calling the foster mother “mom,” despite being told by staff that this confused her. On one occasion, he placed the minor on “time out” “for not knowing her ABCs.” On another occasion, when the minor placed a block close to his face, he said to her: “‘[W]hen are you going to learn that I get upset when people put things in my face, and when I was younger I used to beat people up for doing that.’” Sometimes, he remained on the couch for the entire visit while his girlfriend played with the minor. He also made inappropriate comments in front of the minor.
Following these comments, petitioner turned to the visit supervisor and said, “‘[J]ust kidding.’”
An addendum in March 2008 reported that inconsistencies in the quality of visits continued to be of concern due to the minor’s diagnosis and needs. Although most of the visit notes between January and March 2008 indicated that petitioner was engaged and attentive during visits, concerns persisted. Petitioner did not appear to understand when it was appropriate to correct or discipline the minor. For example, on one occasion, he told the minor she needed to stop sucking her thumb. On another, he told her he was getting frustrated because she was not listening and was taking too long to eat her breakfast. On another occasion, he indicated to the minor that she was misbehaving when the swing he was pushing her on began to go sideways. In addition, petitioner disclosed to the minor on several occasions that he was ill.
In February 2008, petitioner again tested positive for opiates.
No evidence was presented at the 12-month review hearing in April 2008. The juvenile court found that return of the minor to petitioner would create a substantial risk of harm, that petitioner had failed to make “substantial progress,” and that there was not a substantial probability the minor could be returned to petitioner’s care within two months, which was the maximum amount of time remaining for services. The court adopted the social worker’s recommended findings and orders, which included the following findings of fact in support of its orders: (1) petitioner failed to exhibit consistent improvement in parenting skills in terms of integrating skills learned in parenting class, his emotional state during visits, and the quality and duration of his engagement with the minor; (2) petitioner tested positive for opiates and failed to provide a prescription; and (3) and the minor had been diagnosed with reactive attachment disorder, necessitating a stable nurturing environment and consistent, dependable parenting to promote healthy development.
The juvenile court terminated petitioner’s reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.
DISCUSSION
Petitioner asserts the evidence regarding his positive drug tests and parenting skills was insufficient to support the juvenile court’s orders retaining custody of the minor and terminating services. We disagree.
Petitioner offers no legal authority or analysis regarding his claim that it was error for the juvenile court to terminate his reunification services at the 12-month review hearing. Accordingly, we decline to address this claim.
At a 12-month review hearing, the juvenile court must order the child returned to parental custody unless it finds, by a preponderance of evidence, returning the child would create a substantial risk of detriment to his or her safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) A parent’s failure to participate regularly and make substantive progress in court-ordered services is “prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f).) The juvenile court’s order in this regard must be upheld if it is supported by substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.)
In the present matter, the minor initially was removed from petitioner’s care after she was found unattended in a motel parking lot and petitioner was located passed out in a room where Vicodin and a glass smoking pipe used for methamphetamine were also discovered. Thus, petitioner’s drug use became a focus of reunification services. Petitioner submitted several positive tests for opiates during the reunification period, fell asleep at visits, and exhibited behavior at one visit strongly suggesting he was under the influence of a drug. These circumstances alone were sufficient to support the juvenile court’s determination that petitioner had not made substantive progress in services.
Petitioner argues “a couple of dirty tests” are not a sufficient basis to deny return of the minor because petitioner has “legitimate orthopedic problems and takes prescribed medication to treat pain.” But petitioner never produced any verification the opiates found in his system on several occasions were prescribed, and he admitted the contrary on one occasion. Moreover, if petitioner’s use of prescription pain killers placed the minor at risk, it is of little consequence that such usage may have been “legitimate.”
Petitioner relies on Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, in which the child was removed at birth after testing positive for amphetamines. (Id. at p. 498.) The mother in that case had performed “‘outstandingly’” in her reunification plan and obtained housing and employment. However, during an ongoing review hearing, the mother took a Tylenol-codeine tablet for a headache, and the juvenile court terminated her reunification services even though it had been about to return the child to her. (Id. at pp. 501-502, 504.) The appellate court held that the mother’s ingestion of “a single prescription pain killer to combat a headache -- in the absence of any prior listing of prescription drug abuse -- was insufficient to justify the court’s conclusion that [the child] could not safely be returned to her custody.” (Id. at p. 506.)
Petitioner’s situation is distinguishable. His use of prescription pain medication was connected to the minor’s removal and was a concern throughout the proceedings. Moreover, he tested positive for opiates on several occasions during the reunification period. And his progress in other areas -- most notably, parenting -- continued to be problematic. In other words, this is not a situation in which a parent with an illegal drug abuse problem performed outstandingly in reunification services and had but one positive test for a prescription pain medication.
Petitioner’s reliance on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 is equally misguided. In that case, the children were removed because the mother left them alone in a motel room while she was at work. There was no evidence this conduct was related to drug use, but the mother was required to submit to testing twice a week as part of her reunification plan. (Id. at pp. 1343-1344.) All but one of the mother’s tests were clean, but she had several missed or diluted tests and one dirty test for marijuana. (Ibid.) Noting that “the purpose of the reunification plan is ‘to overcome the problem that led to removal in the first place’” (id. at p. 1343) and that there was no evidence the mother had ever used marijuana or alcohol around the children (id. at p. 1345), the appellate court held that, under the circumstances, evidence of some missed or diluted tests and one positive test for marijuana was insufficient to support a finding that there would be a substantial risk of detriment to the children if returned to the mother’s care. (Id. at p. 1346.)
Again, petitioner’s circumstances are distinguishable because his use of pain killers was one of the primary concerns at the time of the minor’s removal. His repeated positive tests for opiates confirmed that this problem had not been resolved despite his participation in services.
Petitioner also argues his “parenting skills showed remarkable improvement beginning in January of 2008,” in that during the vast majority of visits, he was appropriate with the minor.
It is true that petitioner’s parenting during visits in the period preceding the 12-month review hearing, while insensitive at times, did not strongly demonstrate conduct that might have been emotionally detrimental to the ordinary child. However, the minor was not an ordinary child. She had received an initial diagnosis of reactive attachment disorder. As a result, she had a greater than average need for thoughtful and consistent parenting. Yet petitioner demonstrated little awareness of the minor’s psychological issues, even though this had been one of the goals that had been set when services were granted.
Petitioner relies on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1751, in which it was held that the social worker’s opinion that the mother had failed to internalize what they had learned in parenting class was too vague to form the basis for refusing to return the child to their care. Here, however, the social worker provided numerous examples of conduct by petitioner illustrating his failure to improve his parenting abilities and respond to the minor’s particular needs. Thus, Blanca P. is distinguishable.
In sum, substantial evidence supports the juvenile court’s conclusion that petitioner had not made substantive progress in court-ordered services. As this finding provided prima facie evidence that return of the minor would create a substantial risk of detriment to her, and as petitioner presented no evidence to negate or diminish this showing, the court’s order declining to return the minor to petitioner’s care was proper.
DISPOSITION
The writ petition is denied.
We concur: DAVIS, Acting P.J., ROBIE, J.