Opinion
E070168
05-23-2018
D.H., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Dawn Shipley for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIJ1600604) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C. Perantoni, Judge. Petition denied. Dawn Shipley for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
The juvenile court terminated petitioner, D.H.'s (Father), reunification services and set the Welfare and Institutions Code section 366.26 hearing. Father filed a petition for extraordinary writ contending insufficient evidence supports the juvenile court's finding that return of B.G. (Minor), born in July 2016, to Father's custody posed a substantial risk of detriment. The petition is denied.
All further statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL HISTORY
Personnel from real party in interest, Riverside County Department of Public Social Services (Department), received a referral on July 18, 2016. Law enforcement officers responded to a hotel in which B.R. (Mother) and Father were involved in a domestic dispute. Mother had been arrested two weeks earlier for domestic violence involving Father and had been released that day. Father picked Mother up from jail. Mother began yelling at Father, grabbed Minor from Father, and continued yelling at Father. Father already had a no negative contact order against Mother. Mother smelled strongly of alcohol. She was on probation.
Mother is not a party to the petition.
Mother admitted being homeless during the previous six months. Father reported Mother's previous arrest had been for killing his turtles; bleaching his clothes; and assaulting him by jumping on him, hitting him with closed fists, and kicking him. Father reported Mother had been diagnosed with bipolar disorder and paranoid schizophrenia, but refused to take her medication. Father reported being in several homeless programs which did not last long due to Mother's aggressive behavior.
The initial report reflected Mother had killed Father's "toads," but subsequent reports and petitions corrected this to "turtles."
Father reported Mother had a history of smoking marijuana, which Mother confirmed. Mother tested negative for drugs after submitting an oral swab at the Department's request. Father admitted smoking marijuana and provided a marijuana recommendation letter from a doctor. The Department referred Father for drug testing. Department personnel released Minor to Father.
On July 19, 2016, Father called Department personnel to report Minor was at the hospital for a doctor's appointment. Mother was attempting to leave with Minor. The police were called. On July 20, 2016, Department personnel took Minor into protective custody. Department personnel discovered that Mother tested positive for marijuana at Minor's birth; Mother kept throwing away Minor's diapers so as to avoid any testing of Minor for drugs. A year earlier, Mother had reportedly sustained a fractured jaw from physical abuse by Father.
Department personnel filed a juvenile dependency petition alleging, as amended, that the parents engaged in ongoing verbal and physical domestic disputes in the presence of Minor (b-1), Mother suffered from mental health issues (b-2), Mother abused alcohol and marijuana (b-3), Father abused marijuana (b-4), Father had a criminal history for engaging in physical altercations (b-5), and the parents were transient and unable to provide Minor with a safe and stable home (b-6). On July 22, 2016, the juvenile court detained Minor and issued a restraining order against Mother.
In the jurisdictional/dispositional report filed on August 17, 2016, Mother claimed Father engaged in physical violence against her, including an incident in which he choked her. Mother reported that Father "'smokes major weed,'" sometimes in the same room as Minor; had a YouTube channel with videos showing him smoking marijuana; and was kicked out of several shelters due to his substance abuse problem. On July 19, 2016, Father tested positive for alcohol and marijuana. Father claimed he had a medical marijuana card. Father failed to show for an on-demand drug test requested by the Department on August 15, 2016. Officers arrested Mother on August 12, 2016, for violating the restraining order in an incident in which she and three men began beating Father; the parents both smelled of alcohol. Mother spent the weekend in jail.
An addendum report filed on September 7, 2016, reflected that Mother was in the process of obtaining a restraining order against, and a divorce from, Father. As of August 8, 2016, Father no longer had a residence. On August 15, 2016, the social worker requested that Father appear for an on-demand drug test, at which failure to show would be deemed a positive test result; Father failed to show. On August 22, 2016, the social worker requested that Father appear for another on-demand drug test; Father tested negative for all substances. The social worker received a letter on August 22, 2016, reflecting that Father had entered a domestic violence shelter on August 16, 2016, and was participating in individual therapy sessions and domestic violence peer counseling. The social worker later contacted the shelter at which Father had been staying and was informed that Father left the shelter on August 23, 2016. The social worker noted that "[d]espite efforts from various agencies in assisting [Mother] and [Father] in housing assistance, they have been unsuccessful in maintaining [a] residence."
In an addendum report filed on September 30, 2016, the social worker recommended that both parents receive reunification services. The social worker noted that Father missed scheduled visitation with Minor on two dates. In an addendum report filed on October 26, 2016, the social worker reported that Father cancelled one scheduled visit with Minor. She observed that Father appeared distracted during visitation; does not change diapers, feed Minor, or console her when she cries. On October 26, 2016, the juvenile court found the allegations in the amended petition true, sustained the petition, declared Minor a dependent of the court, found by clear and convincing evidence that return of Minor to the parents' custody would pose a substantial risk of detriment, and removed Minor from their custody. The court ordered reunification services for both parents.
In the six-month status review report filed on April 12, 2017, the social worker recommended continued reunification services for both parents. Mother alleged that Father had previously broken her jaw, choked her, and raped her; Father denied the allegations. Mother had moved to Maryland, stating she was afraid Father would hurt her if she remained in California. Father had begun and ended services at several different homeless shelters during the reporting period; however, on April 1, 2017, Father acquired suitable housing for he and Minor. Father enrolled in individual counseling on November 18, 2016, parenting education on September 27, 2016, one domestic violence program on September 27, 2016, and another on January 31, 2017. Father missed a drug test on March 7, 2017, and tested positive for marijuana on March 9, 2017. Father visited regularly with Minor.
On April 26, 2016, the juvenile court authorized liberalized visitation between Minor and Father, to include unsupervised visitation; overnight and weekend visits; and, potentially, placement with Father on family maintenance services. The court acknowledged Father had a marijuana card, but noted: "[Y]ou can't take care of a little baby when you are stoned. You just can't. You have to be alert at all times . . . ." "In a few months [Minor] is going to be walking. That is when they get more dangerous. So walking in front of cars and, you know, walking out of the house. You have to be alert. You can't be stoned."
In the 12-month status review report filed on September 7, 2017, the social worker recommended that Father's reunification services be terminated, but Mother's be continued. Father had completed court-ordered services, but failed to continue to test. Father had missed on-demand tests on three different occasions. Father had unsupervised visits on 20 occasions which were changed to supervised "due to recent referral and tension between the [F]ather and the caregiver." Father then had three supervised visits. Father later engaged in 19 unsupervised visits which were deemed appropriate. Father had maintained his stable living environment since April 1, 2017.
On September 20, 2017, the social worker filed an amended recommendation to continue reunification services for Father. That same day, the court ordered services continued for both parents until the 18-month hearing. In the 18-month status review report filed on January 9, 2018, the social worker recommended that the court terminate Father's reunification services and place Minor with Mother in Maryland on family maintenance services. The social worker noted that Father had not made satisfactory progress in counseling and mental health services and had failed to show for all four random drug tests scheduled during the reporting period. Father's therapist reported Father attended six of the eight scheduled counseling appointments. The therapist stated Father had "been elusive," "paranoid," and withheld information regarding for what condition marijuana had been prescribed and the nature of his use of marijuana. Father had been slow to form a therapeutic bond with the therapist. Father had engaged in visitation with Minor, but had canceled visits on four occasions.
An addendum report filed on January 25, 2018, reflected Father failed to show for several more random drug tests ordered in January 2018. He did, however, test negative for substances in January 2018. An addendum report filed on February 6, 2018, reflected Father failed to show for an additional four on-demand tests since the filing of the last report. The report also contained attachments of Father's Facebook postings in which he railed against the devil, racism, and the United States government.
At the contested review hearing on February 7, 2018, Minor objected to placement with Mother. Father had not continued to attend counseling because he had not been told to do so. He believed he came to drug testing on all the dates requested by the social worker, although he missed a few tests when he became homeless and had his car stolen.
The social worker testified Father had not complied with the part of his case plan requiring that he consistently test for drugs; Father had failed to show for testing on "multiple" or "half a dozen" occasions. After the social worker's testimony regarding Mother's positive tests for alcohol, Department personnel changed their minds about the recommendation; they requested a continuation to file an amended report and recommendation. Mother had earlier requested a continuance to put on additional evidence in the event the court decided to go against the social worker's original recommendation. The court continued the matter.
There were apparently two occasions when Father showed up for a drug test, but was unable to test due to "clerical error[s]."
In the addendum report filed on February 9, 2018, the social worker recommended that the court terminate reunification services for both parents and set the section 366.26 hearing. The social worker resumed her testimony on March 15, 2018, during which she said another matter of concern regarding Father was that he was not changing Minor's diapers during visits; Minor frequently returned with a rash from visits with Father.
The court found concerning Father's Facebook posts, his failure to cooperate with the Department and the foster family, and his failure to drug test: "There are numerous failures to test." Also of concern to the court was Father's failure to graduate past supervised visitation. The court found Father's progress regarding his services "minimal" and a return of Minor to Father would pose a substantial risk of detriment. The court terminated the parents' reunification services and set the section 366.26 hearing.
The court mentioned six missed drug tests. --------
II. DISCUSSION
Father contends insufficient evidence supports the juvenile court's finding that return of Minor to Father posed a substantial risk of detriment. We disagree.
"At a status review hearing, the court must return the child to the physical custody of his or her parent unless the Agency proves, by a preponderance of the evidence, that return to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. [Citations.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (§ 366.22, subd. (a).)
"We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] '"Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.]' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]' [Citation.]" (Tracy J. v. Superior Court, supra, 202 Cal.App.4th at p. 1424.)
Here, defendant failed to make substantive progress in his court-ordered services. Neither the Department nor the court were particularly concerned with Father's use of marijuana. Indeed, the court acknowledged Father had a valid medical marijuana card, but was concerned about defendant's abuse of marijuana. Father's case plan required that he participate in random drug testing to ensure there was no abuse or risk of abusing marijuana. Although Father provided the Department with a copy of his "Physician Statement and Recommendation" for use of marijuana, it did not reflect for what condition defendant had been prescribed marijuana or how often he should use it. Father's therapist indicated Father was "withholding . . . information regarding substance use including declining to respond to questions regarding any medical condition for which [m]arijuana may have been prescribed." Mother claimed Father "'smokes major weed,'" had a YouTube channel in which he had videos showing him smoking marijuana, and that they had been kicked out of several shelters due to his substance abuse problem. The court sustained the b-4 allegation that alleged Father abused marijuana. Thus, some degree of monitoring of Father's purpose and use of marijuana was necessary to demonstrate that he could properly care for Minor.
However, Father tested negative for drugs on only three occasions during the entirety of the proceedings below. He tested positive on two occasions. Contrary to the court and the social worker's indication that Father had missed only six tests, we tally defendant's no shows for drug tests as at least 16. This failure to regularly show for testing was a failure to participate in one of the pillars of Father's case plan based upon a sustained allegation. The rational inference of Father's failure to participate was that he was abusing marijuana.
Moreover, Father manifested "paranoia" in his interactions with the caregivers causing "tension," which resulted in Father's visitation being downgraded from unsupervised to supervised. Thus, Father's failure to make regular and substantive progress in these particular aspects of his case plan provided sufficient evidence for the juvenile court to find that Father posed a substantial risk of detriment to Minor such that custody should not be returned to Father.
III. DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.