Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) (Los Angeles County Super. Ct. No. CK64535 David R. Fields, Judge.
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen Bacon Wiley and Karina Johnson for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Real Party in Interest.
GRIMES, J.
INTRODUCTION
Petitioner is the father of three infant children, a three-year-old daughter (A.R.) and one-year-old twins (D.R.2 and D.R.3), all dependents of the juvenile court. On April 13, 2011, the juvenile court terminated father’s reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26. Father has filed a petition for extraordinary writ challenging the juvenile court’s order. We disagree with his contentions and deny the petition.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL BACKGROUND AND FACTS
The Los Angeles County Department of Children and Family Services (the Department) received a referral that on December 31, 2009, father and the mother of his three children got into a heated argument and father “slapped” mother in the face multiple times while she was pregnant. Mother’s left eye and cheek were red and swollen. A.R. was present and frightened by the incident. Father was arrested and incarcerated. Even though he denied to police officers that he had done anything to mother, he could not explain her injuries.
Mother is not a party to this writ proceeding.
A couple of weeks later, there was a second referral alleging that mother and father’s domestic violence resulted in the premature birth of their twins, D.R.1 and D.R.2, born at 27 weeks. The twins were born critically ill. They were at high risk due to premature birth and required extensive physiological monitoring, mechanically assisted ventilation, and intravenous nutrition and medications.
These incidents were not mother and father’s first involvement with the juvenile court. The juvenile court had sustained a petition stating that in July 2006, mother’s child, K.U., was found severely injured with a subdural hematoma, cerebral edema, multiple rib fractures, a hemorrhaging knee, and a wound on his right hand. He also had multiple bruises on his cheeks and left side of his abdomen, as well as scratches on his forehead, nose, left ear, and right side of his groin. Mother and father, her live-in male companion and K.U.’s caretaker, gave conflicting explanations that were inconsistent with the injuries. But the injuries were consistent with inflicted trauma and would not have occurred except for deliberate, unreasonable, and neglectful acts. Mother failed to reunify with K.U., and her parental rights were terminated in September 2007. The child was adopted.
The social worker interviewed the maternal grandmother (grandmother), who said mother had very poor judgment and was a victim of father’s ongoing domestic violence. Grandmother stated father was in and out of jail, had a violent temper, an extensive criminal history, and was addicted to marijuana and possibly other drugs. Also, father had threatened to kill grandmother if she were to try and take the twins from him. Mother was afraid of father. Grandmother begged her to leave father, but she refused.
The maternal aunt (aunt) told the social worker she was concerned about mother’s abusive relationship with father and the fact mother refused to leave him. Mother had called the aunt many times complaining about how badly father treated her, yet mother refused to leave father or get a restraining order. The aunt also said mother would text her, saying things like, “‘I want to poison him.’” On another occasion, mother sent a text message saying she was bringing in the new year with a black eye, and explained that father had kicked her in the face. Mother told the aunt that father bad-mouthed and beat her. Father would even beat mother for contacting the aunt. Mother begged the aunt not to telephone the police or grandmother because father threatened to hurt the grandmother and the aunt, something the aunt believed father was capable of doing.
In January 2010, the Department filed a dependency petition and detained the children. In further interviews with the social worker, mother denied father had slapped her in December 2009 or that he ever hit her. Mother blamed three-year-old A.R. for giving her the black eye. She said father was the most important person in her life and that grandmother and the aunt were lying about her telling them father beat her. Mother also disclosed that she and father used marijuana three to 10 times a day, or “‘all day every day, ’” when home with A.R. Mother did not stop using marijuana until the fifth month of her pregnancy with the boys. Father similarly denied hitting mother. He admitted using marijuana, but said he had a prescription and used it to treat his back and neck pain.
The twins needed special medical care and grandmother was willing to undergo the necessary training to care for them. But the children’s physician advised that they would require high-risk, follow-up treatment for one and one-half years, and their caretakers had to live close to the medical specialists who would be providing the treatment. Because grandmother lived in Bakersfield, the twins were placed with foster parents who were trained to care for special needs foster children.
In April 2010, the social worker reported that mother had tested positive for marijuana on February 10 and 22, 2010, and tested positive for opiates and morphine on February 22. Father failed to attend a drug test on February 4, and similarly tested positive for marijuana on February 17 and March 16.
During a visit with the twins in April 2010, the foster family agency supervisor observed mother with bruises on her left cheek bone, back and arm. There were marks and bruises on other parts of mother’s body as well. The supervisor reported that mother was depressed and did not make eye contact that day, and that father was sitting in the car with her before the visit, despite the fact that a restraining order prevented father from having contact with mother. Father was arrested the same month and charged with a felony for carrying a loaded firearm. He was incarcerated.
On April 27, 2010, the juvenile court sustained an amended petition indicating mother and father had engaged in verbal and physical altercations in the presence of A.R., while mother was pregnant with the twins. Mother had failed to protect the children from father’s domestic violence and father’s violence placed the children at risk of harm. In addition, the sustained petition stated mother and father had a long history of illicit drug abuse and were frequent users of marijuana, rendering them incapable of providing regular care to the children because their use of illicit drugs endangers the children’s health and safety and thus places them at risk of physical and emotional harm.
On June 22, 2010, the juvenile court ordered father to participate in a drug rehabilitation program with random testing for drugs and alcohol, a parenting education program, and individual counseling to address anger management and domestic violence. The court ordered mother’s and father’s visits to be monitored and that they visit separately.
For the six-month review hearing, the social worker reported the children were thriving in their placements, that mother and father had enrolled in the ordered services, and that they were consistent in their visits. Father had completed domestic violence counseling, and programs for parent education and domestic violence batterers. But on October 25, 2010, he refused to be tested for drugs or alcohol. He felt it was unnecessary to continue with any kind of substance treatment program. Father was also no longer participating in his drug rehabilitation program.
Mother and father continued to deny and minimize the severity and inappropriateness of their domestic violence. They arrived for visits at the same time, although the juvenile court had ordered them to visit separately. They had been seen together before and after visits, and father would pick up mother’s bus passes so he could deliver them to her. As of the end of November 2010, father was unemployed, living with mother, and reliant upon her. Grandmother reported father was very aggressive, and she refused to monitor his visits with the children.
The social worker reported that father appeared unconcerned about the twins’ impaired immune system and persistent respiratory problems, insisting that D.R.2 be circumcised even though doctors warned against it, advising that the required anesthesia or spinal block could kill him. Also, father would go to visits smelling of cigarette smoke and would kiss the children on the lips, even though he had a cold and the doctor advised against it. The social worker also expressed concern regarding father’s inability to control his anger and interact positively with others. The twins’ foster mother indicated she was interested in adopting them, and grandmother was willing to adopt A.R., or be her legal guardian.
On January 6, 2011, father enrolled in a substance abuse program, which included individual counseling and random testing. A progress letter stated father was in compliance with the program. Nonetheless, on February 16, 2011, the social worker randomly tested mother and father. They both failed -- testing positive for marijuana.
At the six-month review hearing, counsel for the Department and the children argued reunification services should be terminated. The juvenile court found the parents in partial compliance with the case plan and ordered additional services, including weekly random testing.
Father continued to participate in his drug rehabilitation program, and mother continued to attend Narcotics Anonymous and Alcoholics Anonymous meetings. On March 16, 2011, the restraining order against father was modified to “‘peaceful contact.’” Nonetheless, a few days later mother was observed at a visit with D.R.1 and D.R.2 with black bruises on her arms and scratches to her neck area. The visitation room smelled of alcohol after mother left, even though mother did not appear drunk. The social worker reported that mother’s and father’s drug tests for March 17 and 21, 2011, were invalidated because of significant dilution.
At the 12-month contested review hearing on April 12 and 13, 2011, father testified that the only domestic violence incident with mother was the December 31, 2009 “slapping” incident, for which father was convicted and served time in jail. He could not explain the bruises and scratches mother had in March 2011, and he similarly could not explain his last two diluted drug tests. Father testified that the last time he smoked marijuana was New Year’s Eve 2010, and the last time he ingested marijuana was February 2011. He said he had a prescription for marijuana, and took it for back and neck pain.
Mother similarly testified the incident on December 31, 2009, was the only time father and mother were involved in domestic violence. She denied that during her visit in March 2011 she had any bruises or scratches, or that she had consumed alcohol. She had no explanation for her diluted tests and said the last time she used marijuana was February 2011. Mother also said she had no explanation for K.U.’s serious injuries and denied he was the victim of child abuse.
Counsel for the Department argued reunification services should be terminated. Counsel asserted the parents had been attending programs but had not learned anything because they continued to minimize their domestic violence and maintained the December 2009 incident was the only episode of violence. Counsel for the children agreed the children should not be returned to mother and father’s care at this time. Counsel was concerned father continued to minimize his domestic violence, and did not have an adequate plan for taking care of the children if they were returned to him. Nonetheless, children’s counsel indicated he was not opposed to extending services. Father’s counsel argued all the children should be returned to him that very day, or in the alternative that reunification services be extended, because he had complied with the case plan.
The juvenile court found that while the parents had substantially complied with the case plan, they had failed to make sufficient progress in treating the problems that required the children’s detention. The court concluded there were too many unanswered questions, and did not believe mother’s and father’s testimony that there had been only one incident of domestic violence between them. The court concluded father was still not taking responsibility for his violence toward mother. The court was concerned that even after receiving extensive services, mother and father were having diluted tests, were testing positive for marijuana, and mother refused to acknowledge or take responsibility for K.U.’s serious injuries. The court did not believe the parents were capable of appropriately caring for D.R.1 and D.R.2, who were very high risk and needed special care. The court finally concluded there was not a substantial probability the children would be returned by the 18-month date, and set a permanency planning hearing pursuant to section 366.26.
This timely writ petition followed.
DISCUSSION
Father contends the juvenile court erred in terminating reunification services because there is no substantial evidence to support (1) the finding of detriment to the children if returned to his care, and (2) the finding that there was no substantial probability of returning the children to his care within the 18-month reunification period. We disagree.
1. Substantial Evidence Supports the Juvenile Court’s Finding of Detriment.
“The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
At the 12-month review hearing, the juvenile 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... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.... 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.” (§ 366.21, subd. (f).)
The mere completion of the technical requirements of the reunification plan is not the sole consideration when deciding whether to return the child to the parent. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) “[A] trial judge can consider, among other things: whether changing custody will be detrimental because severing a positive loving relationship with the foster family will cause serious, long-term emotional harm...; whether the natural parent maintains relationships with persons whose presence will be detrimental to the [child]...; instability in terms of management of a home...; limited awareness by a parent of the emotional and physical needs of a child...; failure of a minor to have lived with the natural parent for long periods of time...; and the manner in which the parent has conducted himself or herself in relation to a minor in the past.” (Id. at pp. 704-705, citations omitted.)
The juvenile court must also consider the progress the parent has made toward eliminating the conditions leading to the child’s placement out of the home. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) In making its determination, the juvenile court must weigh recent efforts against previous failings to evaluate the likelihood that the parent will maintain a stable existence for the remainder of the child’s life. (In re Brian R. (1991) 2 Cal.App.4th 904, 918.)
The juvenile court’s determination is reviewed for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) “Substantial evidence” means such evidence as a reasonable mind might accept as adequate to support a conclusion. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) In reviewing the evidence, we must construe it in the light most favorable to the juvenile court’s determination, resolve all conflicts in support of the court’s determination, and indulge all inferences to uphold the court’s order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021.) The trier of fact determines the credibility of witnesses. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) The trial court’s exercise of discretion will not be disturbed unless it is exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
We reject father’s assertion that there is no substantial evidence to support the juvenile court’s finding of detriment. As the Department persuasively argues in its response to father’s petition, there are several categories of evidence which amply support the court’s decision.
Marijuana Use. First, there is substantial evidence to support the juvenile court’s concern about father’s marijuana use. While father testified he smoked or ingested marijuana only sporadically for medical purposes and did so outside the presence of the children, the juvenile court found his testimony was not credible. Indeed, mother had stated that before the Department’s involvement she and father together smoked marijuana “daily” and “3 [to] 10 times per day, ” while they were caring for A.R. Mother and father even smoked this much while she was pregnant with the twins.
The juvenile court sustained allegations that the above drug abuse rendered mother and father incapable of caring for their children and placed them at a substantial risk of harm. These findings are now final and were never challenged on appeal. The children were, at least in part, taken from mother’s and father’s custody for this very reason. The juvenile court therefore set up a specific series of reunification services designed to eliminate this risk to the children.
Despite knowing that he would be under scrutiny and the consequence of failure was the possible loss of his children, father continued with his drug use. He tested positive in February and March 2010, failed to test in February 2010 and refused to test in October 2010 (complaining the whole process was unnecessary), tested positive again in February 2011, and had two diluted tests in March 2011.
It was not enough for father to show that he had reduced his drug use during the period of scrutiny. Father’s numerous positive, refused, and diluted tests indicated a good possibility he would return to his “‘all day every day’” use once the court is no longer watching. (See In re Brian R., supra, 2 Cal.App.4th at p. 918 [the juvenile court must evaluate the likelihood that the parent will be able to maintain a stable and sober lifestyle for the remainder of his son’s childhood]; § 300.2 [“The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.”].)
We reject father’s contention that his case is controlled by Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer) and In re Alexis E. (2009) 171 Cal.App.4th 438 (Alexis). In Jennifer, the children were detained from mother because on a single occasion she had left them alone without a caretaker while she went to work. Despite an almost flawless record during the reunification period, the juvenile court found mother was not in compliance with the case plan because she had missed some drug tests. The appellate court disagreed, concluding there was no substantial evidence of a risk of detriment because (1) the social worker confirmed mother had good parenting skills (id. at p. 1336), and the therapist described mother as being “far removed from ever leaving children unattended” and there was no report she did so during the trial period of custody (id. at p. 1331); and (2) the children were not initially detained due to mother’s drug use, and the petition did not raise drug abuse as a ground for removing the children from mother’s custody. (Id. at p. 1344.) Unlike Jennifer, father’s children in this case were detained, at least in part, because of his drug use, an allegation that was sustained by the juvenile court, and conduct which father continued up to two months before the 12-month review hearing.
In Alexis, the father argued his use of medical marijuana could not support a finding of jurisdiction by the dependency court. In finding the juvenile court properly had jurisdiction, the appellate court noted “the mere use of marijuana by a parent will not support a finding of risk to minors.” (Alexis, supra, 171 Cal.App.4th at p. 452.) Unlike Alexis, the evidence of father’s drug use in this case is pervasive.
Domestic Violence. Second, there is substantial evidence to support the juvenile court’s concern about father’s domestic violence. Despite mother’s assertion that father struck her repeatedly in December 2009, she denied it three months later. At the 12-month review hearing, she again admitted it but said it was the one and only occurrence of domestic violence between her and father. Father denied the incident until the 12-month review hearing, when, like mother, he admitted his violence but said it was the only time. The juvenile court appropriately found this testimony lacked credibility.
The record shows that grandmother had explained how mother was an ongoing victim of father’s domestic violence. He was in and out of jail and had threatened to kill mother. Grandmother refused to monitor his visits because he was so aggressive. The aunt also had reported mother called her and texted her many times complaining of father’s physical abuse, including a black eye from a kick to the face. Father beat mother for calling the aunt to complain about his abuse.
While there is no direct evidence father caused mother’s bruises and scratches observed during visits in April 2010 and March 2011, the evidence indicates mother and father went to visits together, and father picked up mother’s bus pass so he could deliver it to her. Based upon father’s history of violence toward mother, the juvenile court was entitled to infer that the April 2010 and March 2011 bruises suggested the parents’ domestic violence was ongoing.
The Twins’ Special Needs. Finally, there is substantial evidence to support the juvenile court’s concern about the twins’ special needs. As noted, one of the factors the juvenile court must consider is the limited awareness by a parent of the emotional and physical needs of a child. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 705.)
The twins were born extremely premature and critically ill. They required extensive observation, physiological monitoring, mechanically assisted ventilation, and intravenous nutrition and medications. They would require high-risk follow-up treatment for at least the next 18 months of their lives, and their caretaker had to be specially trained to provide the required care.
Neither parent made any attempt to seek the training required to care for the twins. Also, father appeared unconcerned about their impaired immune systems and persistent respiratory problems because he insisted on D.R.2 undergoing a circumcision even though the procedure required anesthesia or a spinal block, which the doctors warned could kill him. Father also showed his lack of concern for the twins’ fragile health by appearing at visits smelling of cigarette smoke and kissing them on the lips while having a cold, even though he was told doing so harmed the children’s impaired immune system.
Consequently, it was appropriate for the juvenile court to find father could not adequately care for the twins, at least at this point in time. We agree with the Department that there was substantial evidence to support the juvenile court’s decision that placing the children with father at the time of the review hearing would create a substantial risk of detriment to their physical and emotional well-being.
Substantial Evidence Supports the Juvenile Court’s Finding That the Children Could Not Be Returned Within Three Months.
Typically, when a child is removed from a parent, the child and parent are entitled to 12 months of child welfare services in order to facilitate family reunification, which may be extended to a maximum of 18 months. (§ 361.5, subd. (a).) But when the removed child is under three years of age, court-ordered services may be limited to six months. (§§ 361.5, subd. (a)(2), 366.21, subd. (e); see Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 13-14.) At the 12-month hearing the juvenile court may extend services to the end of the 18-month period if it finds there is substantial probability the child will be returned to the parent and safely maintained in the home within the extended period of time. (§§ 361.5, subd. (a), 366.21, subd. (g)(1).)
There can only be a substantial probability of return if the court finds all of the following: “(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).) Such findings are reviewed for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.)
The children in this case were removed from their parents on January 22, 2010. Eighteen months from that date is July 22, 2011. Reunification services were terminated on April 13, 2011. To extend services further, the juvenile court was required to find there was a reasonable probability that the parents could accomplish in three more months what they had not accomplished in 15 months.
As noted, it was not father’s unwillingness to attend the programs that posed a problem. Rather, it was his unwillingness to admit the severity of the problems and make the changes necessary to alleviate the problems that prevented him from having custody of the children at the April 13, 2011 hearing. There is nothing in the record showing father can, much less will, make those changes within a mere three months. If he can do so beyond that time period, he has an adequate remedy by filing a petition under section 388. We conclude there is substantial evidence supporting the juvenile court’s order denying further reunification services.
Disposition
The petition is denied. This opinion is final forthwith as to this court pursuant to rule 8.490(b)(3) of the California Rules of Court.
WE CONCUR: BIGELOW, P. J., FLIER, J.