Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Super. Ct. No. CK67619, Jan G. Levine, Judge.
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen L. Bacon and Stephen Chong, for Petitioner.
No appearance for Respondent.
Richard E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
By a petition for writ of mandate under California Rules of Court, rule 8.452, I.C. (Father) challenges a juvenile court’s jurisdictional findings and dispositional order, and requests a stay of the Welfare and Institutions Code section 366.26 hearing scheduled for August 20, 2009. We conclude Father has failed to make the requisite showing of good cause to justify a stay, and deny his request on the merits.
All further statutory references are to this Code.
FACTUAL AND PROCEDURAL BACKGROUND
Brothers Gi.C. and Ga.C. came to the attention of respondent Department of Children and Family Services (DCFS) in late March 2007, when they were three years and sixteen months old, respectively, after police responded to a call about a man assaulting a woman. The boys’ parents, I.P. (Mother) and I.C. (Father) denied any domestic violence, and Mother refused medical attention.
Mother had a black eye when the DCFS social worker visited the home the family shared with another family. She denied Father had assaulted her. Rather, she said she and Father had argued and, when she followed him to his car, she fell and struck her face on a concrete floor. Both parents denied any current problems with substance abuse. Mother told DCFS Father had used cocaine in the past but said he had not done so during their six-year relationship.
Father denied ever having physically assaulted Mother. He had been involved with DCFS in the past. His three children with his ex-wife, S.R. (who is also Mother’s stepsister), were detained as a result of drug-related charges against both parents, and were eventually placed with a paternal relative.
DCFS interviewed members of the family from whom Mother and Father had rented a bedroom for about three months, which they shared with the boys. During that time, L.G., the mother of that family, said she had witnessed several incidents of domestic violence between the parents, at least one of which occurred in front of the boys. L.G. described two incidents during which she saw Father strike Mother repeatedly on her face and upper body. None of L.G.’s three children had witnessed domestic violence between Mother and Father, although one child had seen Mother emerge from her room with a black eye after a loud argument with Father. All three children said Mother and Father argued very loudly and often, and Father used very foul language.
The boys’ maternal grandmother (MGM) also told DCFS she believed Mother and Father engaged in domestic violence because Mother sometimes arrived for visits at MGM’s home with black eyes. Mother told MGM the injuries came from bumping into household items or fights with other women, although she did once admit Father threw something at her in 2006.
The boys were detained and placed in foster care.
In mid-May 2007, DCFS filed a first amended petition, adding allegations that Father had a history of substance abuse and was a current and frequent user of illicit drugs, including methamphetamine. By this time, DCFS had learned Father had an extensive criminal history, including multiple arrests and a conviction for domestic violence. S.R., Father’s ex-wife, told DCFS that, when she and Father were together, he had punched her with a closed fist, and slapped and kicked her, leaving her bruised and with black eyes, and had hit her in front of at least one of their children. S.R. said Mother was aware of Father’s history of domestic violence when she began her relationship with him, and told S.R. he hit her too and had given her black eyes. S.R. believed Father was addicted to crack or meth. Although she never saw him use drugs, she had found paraphernalia, like pipes. One paternal cousin told DCFS Father had admitted to her he had a drug problem and had abused methamphetamine. Another cousin told DCFS Father was unemployed and had been homeless the past five years.
At the adjudication hearing in May 2007, both parents submitted on the amended petition and waived their trial rights. The court accepted the waivers, sustained the count related to Father’s history of physical violence against Mother, and her failure to protect the boys, but struck the allegations regarding Father’s substance abuse. The parents were awarded reunification services, including transportation assistance. Father was ordered to participate in programs for domestic violence, parenting and individual counseling, and to participate in a drug treatment program with random testing. Mother was ordered to participate in programs for parenting, individual counseling and domestic violence for victims. Both parents were given separate monitored visitation.
The months that followed were difficult for the parents. DCFS learned that Father was selling bus tokens DCFS gave the parents to enable them to get to visits with their sons. Father said he sold the tokens because he needed clothes. In addition, the parents were not complying with the case plan and, by August 2007, were at risk of being discharged from their in-patient treatment program. Father blamed his failure to participate in the program on the need to work, but he was unable to provide proof of employment, gave a fictitious address for his employer, and was observed by his program counselor roaming the streets. Father became irate and quit the program. In September 2007, Mother told DCFS she had relapsed and used methamphetamines (for which she tested positive) with Father while out on a weekend pass from her program. Father did not stay in touch with DCFS and did not comply with the case plan. He interfered with Mother’s ability to do so through September 2007. The parents’ visitation was inconsistent until early October 2007. Visitation resumed then, after the parents enrolled in an outpatient program for substance abuse, parenting and domestic violence. The parents were employed, but still lacked stable housing.
From that point, the parents began making progress. They participated in most of their court-ordered programs and, when they showed up, their random drug tests were negative. The parents’ visitation, however, remained inconsistent. They frequently cancelled visits or left early. They arrived for visits together, even though they were repeatedly told not to do so, as their visitation was separate, and they refused to be flexible to accommodate others’ schedules. In December 2007, the juvenile court found the parents in partial compliance with the case plan, and gave them an additional six months of reunification services.
Father had not yet enrolled in an anger management program, was not officially enrolled in the parenting program because he had not paid an enrollment fee, and had missed a few drug tests.
The quality and consistency of the parents’ visits with the boys improved. By the time of a hearing in April 2008, DCFS agreed the parents had made “great improvement” and had progressed to the point where they deserved joint, unmonitored visits with their sons. The parents were actively participating in the court-ordered case plan, had rented a two-bedroom apartment, and were complying with DCFS’s visitation rules. The court adopted DCFS’s recommendation.
The 12-month review hearing was conducted on June 9, 2008. (§ 366.21, subd. (f).) DCFS recommended the boys be returned to their parents’ care. The parents’ apartment was appropriate, and the boys had been having weekend, overnight visits, which went very well. Gi.C. told DCFS he wanted to live with his parents. Ga.C. was too young to express an opinion. Father had completed the parenting program, and was still enrolled in individual therapy and the substance abuse and domestic violence programs. Meanwhile, both boys had been referred for evaluations and assessments for speech and language delays. The court ordered the parents to follow up and obtain those assessments, and the children were returned to their parents’ care, under DCFS supervision.
Unfortunately, as DCFS reported at the next review hearing in December 2008, not long after the boys were returned home, things began going downhill fast. In July 2008, the family was notified they had to vacate their apartment. The parents had received housing assistance to help them pay their $1,200 monthly rent, but they were responsible for the remainder, which had not been paid since March 2008. They owed approximately $4,500 in back rent for March–July 2008. In early August, Father told DCFS he wanted to move his family to Las Vegas, where a cousin had a job and an apartment waiting for him. Father became upset when he learned he needed court permission to transfer the dependency case to Nevada, which might decline to accept it. Father was told the family preservation program could help the parents find housing in the meantime. At first, Father refused to sign the paperwork, because he believed DCFS and the assistance programs posed obstacles which prevented him from maintaining his parental obligations. However, he later agreed to participate in the housing program. Unfortunately, by the time Father agreed to accept the housing assistance, it was too late to prevent the family’s eviction. By the end of August 2008, the family began staying with a series of maternal and paternal relatives. Meanwhile, the parents had not followed through to obtain the boys’ speech and language assessments. In addition, Father had ceased participating in his domestic violence and individual counseling programs by June 2008. Both parents were unemployed, and the family relied entirely on Mother’s CALWORKS funds for their finances. Notwithstanding the family’s transient status and the parents’ tenuous financial circumstances, DCFS did not request and the court did not order any change in the boys’ placement.
DCFS filed a subsequent petition (section 342) in January 2009. That petition was filed after DCFS visited the family’s home on January 12, 2009 after receiving a child abuse hotline referral, and saw that Mother had a black eye. Mother denied any domestic violence and said she had been involved in a physical altercation with her sister. During that visit, a DCFS social worker overheard five-year-old Gi.C. tell his younger brother that “when [the social worker] asks you if daddy hits mommy say no, okay?” DCFS asked the parents to take on-demand drug tests; they agreed. Several days later, the results of Mother’s test came back positive for methamphetamine; Father’s test results were negative. On January 20, 2009, after DCFS learned about Mother’s positive drug test, it made several attempts to detain the children, but was unable to locate the family. The section 342 petition alleged Mother had a history of engaging in violent altercations with her sister, a history of drug abuse and was a current user of methamphetamine/amphetamine. The juvenile court issued arrest warrants for the parents after they failed to show up for the detention hearing on January 23, 2009, and protective custody warrants for the children.
On February 18, 2009, Father called the social worker. He blamed DCFS and the family preservation program for failing to provide funds to prevent the family’s eviction. He said he and Mother were living in their car, while the boys stayed with paternal relatives. He said he had not been hiding from DCFS, but merely trying to find housing and get his family stabilized, and had simply neglected to contact DCFS. He wanted the instant dependency matter to be closed, and said he had made arrangements for housing and a job in Las Vegas. The children were detained and the warrants recalled on February 19, 2009.
In mid-March 2009, DCFS filed the operative first amended subsequent petition under section 342. It added allegations regarding the parents having remained at large with the children for over a month, preventing DCFS from having any access to the children, and the parents’ failure to comply with court orders regarding the boys’ speech and language assessments.
Mother told DCFS she had only used methamphetamine on one occasion in January 2009, and had done so because of the stress she was suffering after being evicted. She said she did not tell Father about her drug use until after her drug test. He was not around when she used the drugs, and she had not returned home that evening until after her children were asleep. Mother admitted she and Father had decided to flee with the children because of her positive drug test. They were afraid DCFS would take the children away, and wanted them to be with relatives. Mother entered a residential drug treatment program in February 2009.
Father told DCFS he had not known about Mother’s drug use. He did admit he had been “a little suspicious” Mother was using drugs, but she denied it when asked, and he believed her. He told DCFS he did not learn of Mother’s drug use until after her test came back positive. He agreed with Mother to leave the boys with relatives so he could help get her into a rehabilitation program and find stable housing. He understood he had made a mistake by not contacting DCFS, but he had been angry at the social worker and focused on helping Mother. He said he stopped participating in the domestic violence program because he had to pay for it. His family was homeless and without food, gas, and clean clothing, and he needed the money to pay for those things instead. He admitted he had stopped attending individual counseling sessions, even though they were free. He had not followed through with the boys’ therapy sessions, nor had he obtained their speech and language evaluations because he was preoccupied with the family’s unstable housing situation.
In September 2008, the boys had begun play therapy deemed necessary because of their aggressive behavior toward one another and their parents. The parents failed to show up for scheduled appointments after October 2008, and did not return the therapist’s calls.
The case manager for Mother’s residential program told DCFS Father had jeopardized Mother’s ability to remain in the program; during a visit with Mother, Father had agreed to buy alcohol for another resident. The children’s caregiver told DCFS the parents had argued while Mother was out on a pass because Father had been aggressive with Mother and wanted to put “hickies” on her neck. Mother had resisted, telling Father she would be kicked out of her program if she came back with hickies, and Father had purposefully tried to sabotage her success. Father denied either incident had occurred as described. However, he was no longer permitted to visit Mother at her residential program, and Mother had discussed the possibility of obtaining a restraining order to keep Father away from her until she completed the program.
The adjudication/disposition hearing was conducted on April 9, 2009. Mother waived her trial rights. As to Father, DCFS argued he had failed to keep DCFS advised of the family’s whereabouts for over a month, and never told DCFS he and Mother were unable to continue to care for the boys. In addition, Father had failed to complete all the court-ordered programs, or to have the boys’ speech assessed as ordered, and continued to make excuses for his failure to comply with these orders. As for his knowledge of Mother’s substance abuse, DCFS argued Father should have been aware of Mother’s drug use because of his own history, which involved his own and his ex-wife’s drug use, the fact that he and Mother lived together and her history of drug abuse. The children’s attorney agreed and pointed out Father had admitted he was suspicious Mother had been using drugs. She also argued that, although Father’s desire to help Mother recover from her addiction was laudable, he had used the boys as a crutch and was willing to risk their well-being to support Mother.
Father’s attorney argued there was no evidence Father knew or could have known Mother had used drugs once in January. Nevertheless, once he found out she used drugs, Father he made efforts to get Mother into a program. At the same time, he tried to protect his children by separating them from Mother and placing them in the care of relatives, while he worked to help Mother and find the family a stable home. Father’s attorney also argued that the allegation that Father had failed to comply with court orders was insufficient to satisfy the jurisdictional requirements of section 300, subdivision (b), which requires evidence of a substantial risk of serious physical harm or illness. The court agreed and struck count (b)(4). It amended count (b)(3) to state that Mother and Father had placed the boys at risk by failing to allow DCFS access to them, and remaining at large for over a month. The court denied further reunification services, and set the matter for a section 366.26 hearing.
DISCUSSION
Father claims there is insufficient evidence to support the juvenile court’s finding that the boys came within its jurisdiction under section 300, subdivision (b). He similarly contends there is insufficient evidence to support the juvenile court’s dispositional order removing the boys from his care. We disagree.
1. Standard of review and operative petition
The first amended petition, as interlineated, was sustained in May 2007, under section 300, subdivision (a). At that time, the juvenile court found the boys were in danger of serious physical harm because of Father’s history of physical violence against Mother, including incidents of domestic violence in the boys’ presence, and Mother’s failure or inability to protect the boys or keep them out of danger and away from Father.
The court dismissed the count under section 300, subdivision (b), regarding Father’s history of substance abuse.
On March 17, 2009, DCFS filed the operative subsequent petition based on events that occurred after the original petition was sustained. The petition was sustained on April 9, 2009, after the juvenile court found the boys were persons described by section 300, subdivision (b), as alleged in the petition.
In January 2009, DCFS filed an initial subsequent petition under section 342, which contained only allegations related to endangering conduct on Mother’s part. Section 342 provides that “[i]n any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition.” The operative first amended subsequent petition was filed in March 2009.
The March 17, 2009 petition alleged that each child had “suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to supervise or protect the child adequately [and] by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse” as provided by section 300, subdivision (b).
Section 300, subdivision (b) applies if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....” “Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 823, italics omitted.) “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Jurisdiction under section 300, subdivision (b) may be premised on either actual serious physical harm, or the substantial risk a child will suffer such harm. Past conduct may be probative, but the pivotal question is whether “circumstances existing at the time of the hearing make it likely the children will suffer the same type of ‘serious physical harm or illness’ in the future.” (In re Janet T. (2001) 93 Cal.App.4th 377, 388, italics omitted; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
We review a juvenile court’s jurisdictional findings for sufficiency of the evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828.) If substantial evidence supports those findings, they must be upheld on appeal. We are limited by the allegations in the petition, and the evidentiary record on appeal. (In re Janet T., supra, 93 Cal.App.4th at p. 392; In re Alysha S. (1996) 51 Cal.App.4th 393, 399–400.) We defer to the trial court’s credibility determinations. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)
2. There is sufficient evidence to support the court’s jurisdictional findings.
We need not address DCFS’s argument that Father has waived his right to challenge the sufficiency of the allegations of count (b)(3) of the March 17, 2009 petition because he failed to file a noticed motion in the juvenile court. Count (b)(3), in the form to which Father objects, was interlineated during the contested jurisdictional hearing. At that point, Father had no opportunity to file a written motion. Moreover, Father asserted oral objections to the amended count at that hearing. Those objections are sufficient to preserve the matter on appeal.
The court sustained two counts of the March 17, 2009 petition. Pursuant to count (b)(1), the court sustained findings under section 300, subdivision (b) that Mother: “has a history of illicit drug abuse and is a current abuser of amphetamine and methamphetamine which renders the mother incapable of providing the children with regular care and supervision. On or about 1/13/09, the mother had a positive toxicology screen.... The father knew or should have reasonably known of mother’s substance abuse. Father continued to allow mother unlimited access to the children and failed to protect the children from their mother. The mother’s substance abuse and father’s failure to protect the children endangers the children’s physical and emotional health and safety, placing the children at risk of physical and emotional harm, damage and danger.”
The court also sustained count (b)(3), as interlineated, to state: “Further, after Mother’s positive drug test, mother and father avoided contact with DCFS and remained at large with the children for a period of time exceeding one month. Mother’s and Father’s failure to allow access to the children by DCFS endangers the children’s physical and emotional health and safety, placing the children at risk of physical and emotional harm, damage and danger.”
The juvenile court’s decision is based, in part, on a finding that Father exposed the children to a substantial risk of serious physical harm when, after learning that Mother had used drugs in January 2009, he allowed her “unlimited access to the children and failed to protect the children from their mother,” and denied DCFS access to them, thereby preventing DCFS from protecting them for a lengthy period. This finding is based on reasonable inferences and credibility decisions drawn from substantial evidence sufficient to justify the court’s exercise of jurisdiction.
Father had extensive experience with methamphetamine abuse and with Mother’s drug abuse in particular. He knew the signs and symptoms. He admits that, before Mother confessed that her drug test would come back positive, he was suspicious that she had used drugs again. Father’s claim that he did not learn about Mother’s drug use until after the positive test results came back cannot be true. Mother told DCFS she knew the test she took on January 13 would yield positive results. She told DCFS that she had told Father before the results were actually released that it would come back positive. Before DCFS received the positive test results on January 20, the parents fled. They fled because they knew Mother’s test would come back positive. Thus, father has to have known before the test results came back that Mother had used drugs and his statement that he did not know was untruthful.
Father told DCFS that, when he learned about Mother’s drug use, he made arrangements for the boys to stay with his relatives while he and Mother lived in their car, and he tried to help her regain sobriety. However, Father has not asserted that the children were taken to the relatives’ home immediately, or that they were removed from Mother’s presence immediately after the family fled. Mother did not enter a rehabilitation program until after the children were re-detained and we have only her word that she stopped using drugs after the one time use in January 2009 that she admits. In finding that Father gave Mother, “a current abuser of amphetamine and methamphetamine,” “unlimited access” to the children, the court appears to have concluded that Father did not take the boys to the relatives’ home immediately and that Mother continued to use drugs in the children’s presence during the time before the boys were placed in the relatives’ home.
We defer to the trial court’s credibility determinations and reasonable inferences supported by substantial evidence. The trial court could have disbelieved father’s statement that he did not know Mother had used drugs. His untruthful representation about the time at which he learned that she had relapsed undermines his credibility on the entire subject. Similarly, based on its lengthy experience with this family and knowledge of the parents’ drug histories, the court could have disbelieved the representation that Mother only used methamphetamine once in January 2009. In addition, the court could have concluded that Father did not immediately transport the boys to his relatives’ home to keep them safe from Mother. From this, the court could have concluded that he knowingly exposed them to Mother after she began using drugs again. In addition, Father’s purposeful removal of the family from DCFS scrutiny can support the inference that there was something going on, such as continued drug use in the presence of the children, which Father sought to hide.
Section 300.2 embodies the purpose of the dependency law. It states that the purpose of dependency law includes preventing the physical danger to children living in homes that expose them to substance abuse: “The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical... well-being of the child.” (Section 300.2; See generally In re Rocco M., supra,1 Cal.App.4th, pp. 825–826 [dangers of child ingesting drugs kept in household and living in environment suggesting drug use is acceptable create substantial risk of serious physical injury].) Thus, the Legislature and the courts have recognized that, in general, substance abuse in the home can threaten the physical safety of children living in the home.
We reject Father’s assertion that his problems were a function of his family’s poverty. It cannot be denied that poverty has played a significant role in the difficulties experienced by this family, particularly in its ability to maintain stable housing. But, a parent’s lack of resources, does not prohibit a juvenile court from asserting jurisdiction regardless of the harm suffered by children. A primary goal of the dependency statutes is “to preserve the family and safeguard the parents’ fundamental right to raise their child, as long as these can be accomplished with safety to the child.” (In re Santos Y. (2001) 92 Cal.App.4th 1274, 131.)
Father’s argument relies on In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.). But, Father’s circumstances are quite unlike the predicament faced by the father in that case. In G.S.R., the father left his children with paternal relatives, willing and able to care for the children. The father wanted to live together with his children and the relatives, but the children’s attorney was concerned that if he moved in, it would jeopardize public assistance funds provided to the relatives caring for the children. (Id. at p. 1208.) Apart from housing, there was no evidence the father failed to provide for the children’s medical or other basic needs. Moreover, in that case, the juvenile court terminated parental rights even though DCFS never filed a petition accusing the father of wrongdoing and the court made no finding that the father was an unfit parent. The court in G.S.R held that the father’s due process rights were violated. (Id. at pp. 1210–1213.) The court also found that there was insufficient evidence to support the juvenile court’s finding of detriment to the children as a result of the father’s conduct. “As for the lack of housing,” the court opined, “DCFS may not bootstrap the fact that [the father] was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of [the father’s] poverty and his concomitant willingness to leave his sons in his family’s care while he stayed close, maintained familial ties and worked to raise rent money.” (Id. at p. 1213.)
This case is different. In the first place, the children first came to DCFS’s attention because of violence perpetrated by Father on Mother. Father has never completed the court-ordered programs intended to help him address and alleviate the problems that led to the boys’ initial detention. Moreover, in addition to failing to provide housing, Father failed to provide his sons some basic necessities. Father presented no evidence that his lack of financial resources prevented him from making arrangements to get his boys into schools, or to obtain the assessments for developmental delays in the boys’ speech and language he was ordered to obtain. Father claims he was preoccupied with money, and overwhelmed by the family’s need to obtain stable housing, and simply failed to follow through to obtain the necessary evaluations. Father’s poverty created no real impediment to obtaining the assessments which were available at no cost, had Father followed through. Further, when his family was at risk of eviction and Father was offered resources to assist him to keep the family in their home, Father initially declined to accept them, because he was mad at DCFS, and wanted the decision making authority over where his family would live. Further, in this case the juvenile court sustained section 300 and 342 petitions specifically accusing Father of wrongdoing. That was not the case in G.S.R., which involved only a nonoffending father.
We conclude based on the totality of the circumstances and the reasonable inferences that may be drawn from the evidence before the court that the trial court’s determination that the children were exposed to substantial risk of serious physical injury was supported by substantial evidence.
3. Dispositional order
A dispositional order removing a child from his or her parent’s physical custody must be supported by clear and convincing evidence. (§ 361, subd. (c); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) In determining whether removal from parental custody is necessary, the juvenile court must decide if reasonable efforts were made to prevent or eliminate the necessity of removal. (§ 361, subd. (d); In re Basilio T. (1992) 4 Cal.App.4th 155, 171, statutorily superseded on other grounds, as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239–1242.) “A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re Diamond H. (2000) 82 Cal.App.4th 127, 1136, overruled on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) We review a juvenile court’s removal order under the substantial evidence standard, bearing in mind the heightened burden of proof. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re Kristin H., supra,46 Cal.App.4th at p. 1654.)
Father contends the removal order was inappropriate because the boys could have remained in his care had reasonable services (i.e., housing) been provided. He insists the only alleged risk factors were his failure to protect the children from Mother’s one-time drug use, and his “inability” to maintain contact with DCFS. Father insists neither risk factor existed at the time of the dispositional hearing because Mother was in a rehabilitation program by then, and he had recognized his mistake and reestablished contact with DCFS. Father mischaracterizes the record.
Father maintains that, even through the family’s homelessness and other turmoil, he took good care of his sons, and did what he could and needed to do for his family. First and foremost, Father was offered the very housing assistance he claims he requires. He failed or was unable to pay his portion of state-funded rental housing (although both he and Mother were employed for some of the time they resided in that housing), and he never informed DCFS about the family’s predicament. After he was several months in arrears, Father chose to turn down an additional offer of assistance for housing funds because he did not like the “strings” attached. By the time he changed his mind and decided to accept the help, it was too late to avoid eviction. Further, Father failed to enroll the children in school, never followed through on multiple promises to obtain the speech and language evaluations the boys required and, apart from a few sessions in fall 2008, never obtained the play therapy ordered to help the boys deal with their untoward aggression. In addition, Father never fully complied with his case plan. He ceased attending his domestic violence and counseling programs, even though one was free and DCFS offered to pay for the other, and chose to abandon his own substance abuse program rather than comply with the program’s rules, when his veracity was challenged. Finally, when faced with the problems posed by Mother’s drug abuse, Father chose to retain control over his sons, even at the risk of jeopardizing their safety, rather than submit to DCFS’s supervision and protection.
This record contains sufficient evidence to support the juvenile court finding that returning the boys to Father’s custody would pose a danger to their physical and emotional health and safety, and that no reasonable means short of removal were available to protect them.
DISPOSITION
Because substantial evidence supports the juvenile court’s jurisdictional and dispositional orders, the petition is denied on the merits.
I concur: MALLANO, P. J.
I concur in the judgment only: ROTHSCHILD, J.