Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from an order of the Superior Court Nos. JD114659 & JD114660 of Kern County. H. A. Staley, Judge.
Patrick M. Keene, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
R.R. (father) appeals an order made at the six-month review hearing continuing placement of his three sons out of his care under Welfare and Institutions Code section 366.21. He challenges the sufficiency of the evidence supporting the finding that his sons would be at substantial risk of detriment if returned to his care. We affirm the order.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father is the presumed father of three sons, five-year-old R., three-year-old Ra., and two-year-old S. (collectively the boys), whose mother is L.C. (mother). Dependency proceedings were initiated on May 30, 2007, when the Kern County Department of Human Services (Department) filed dependency petitions with respect to each of the boys (later amended on July 9, 2007).
During these proceedings, DNA tests revealed that R.’s biological father is Le. J. As a result, Le. J.’s status was elevated from alleged to biological father, and he was given reunification services. He is not a party to this appeal.
Mother is not a party to this appeal. During the pendency of the proceedings, mother gave birth to a daughter, Ra. Father was declared her presumed father. Ra. was removed from her parents’ custody and placed in a foster home. She is not a subject of this appeal.
The amended petitions alleged that the boys had suffered, or there was a substantial risk they would suffer, serious physical harm inflicted non-accidentally by mother because on May 23, 2007, mother became angry with the boys’ 10-year-old half-sister, L.J., grabbed her by the neck, pushed her against the wall, and spanked her with a belt. As a result of the spanking, L.J. received bruises, scratches, and marks on her face, bottom, back, chest, arms, legs and shoulder.
The amended petitions further alleged that the boys had suffered, or there was a substantial risk they would suffer, serious physical harm or illness by mother’s and father’s inability to provide regular care due to their substance abuse. Specifically, the amended petitions alleged (1) mother regularly smoked “chronic marijuana” out of a black and white glass bong or rolled as a cigarette; (2) she smoked the marijuana in the family home in the children’s presence; (3) she provided L.J. and the boys with “chronic marijuana,” which L.J. and then four-year-old R. smoked out of a bong and rolled as a cigarette, and then two-year-old Ra. smoked out of the family bong; and (4) she blew smoke from the marijuana into then nine-month-old S.’s face. With respect to father, the amended petitions alleged he had a medical marijuana card and smoked “chronic marijuana” out of a black and white glass bong or rolled as a cigarette at least four times a day in the family home and in the children’s presence.
The amended petitions also alleged that the boys’ sibling had been abused or neglected, therefore there was a substantial risk they would be abused or neglected, as on February 19, 1993, a petition was filed in Los Angeles on mother’s son and the children’s sibling, A.C., due to physical abuse, when mother was a minor and dependent of the court; the court’s involvement with A.C. ended on June 22, 1994, after mother failed to reunify with him; and A.C. subsequently was adopted.
All of the children were detained. Eventually, L.J. was placed in a relative’s home, while the boys were placed together in a foster home. When interviewed on May 29, 2007, mother admitted she “whooped” L.J. harder than she should have and that L.J. received a “whoopin” three to four times per month, but said that L.J. was a liar and they were having a lot of problems with her. She also admitted she and father smoked marijuana, but denied doing so in front of the children or making it available to them. In an interview conducted that same day, father justified the “spanking” of L.J. and said she had been out of control and getting into a lot of trouble. Father admitted smoking marijuana at least four times a day and said he had a medical marijuana card, but denied giving the children marijuana.
L.J. is not a subject of this appeal.
At the August 20, 2007, jurisdictional hearing, father and mother submitted on the reports. The court sustained the amended petition’s allegations and found the boys came within section 300, subdivisions (a), (b) and (j). At the October 1, 2007 dispositional hearing, father and mother submitted on the reports. The social worker pointed out in the social study that the family had very limited support – mother had no family members she could depend on and had been a victim of physical and sexual abuse, and father did not appear to have any support from friends or family members – and neither mother nor father were employed. The social worker reported that neither mother nor father had accepted responsibility for their actions and both blamed L.J. for the children being placed into protective custody. The court declared the boys dependents of the court, removed them from their parents’ custody, and granted reunification services to father and mother. Father’s services included counseling for parenting, sexual abuse as a perpetrator, physical abuse awareness and substance abuse. Mother’s services included counseling for anger management, parenting, sexual abuse awareness and substance abuse. Both father and mother were ordered to submit to random, unannounced drugs tests on at least a monthly basis. Father and mother were given weekly two-hour supervised visits with the children.
At the Department’s request, the court dismissed allegations in the amended petitions that the boys came within section 300, subdivision (i) based on their parents’ marijuana use.
Father objected to the requirement he complete counseling for sexual abuse as a perpetrator and requested it be stricken as unnecessary. The Department explained that while there is no specific allegation in the amended petition relating to this component, the Department was recommending it as part of father’s case plan as he was charged in 1981 with unlawful sexual intercourse with a minor and incest, and since September 1985 he has been required to register as a sex offender under Penal Code section 290. The court overruled the objection, finding there was a reasonable, evidentiary basis to make the requirement part of his case plan.
A contested six-month review hearing with respect to the boys was held on February 26, 2008. In a social study dated January 10, 2008, the social worker reported that mother had made moderate progress with the case plan. She completed the counseling programs in parenting and child abuse and neglect, receiving certificates of completion for those programs in October 2007. She had partially met the requirement to participate in counseling for substance abuse; she enrolled in counseling for substance abuse in June 2007, had attended all 32 sessions, and was expected to complete the program on February 22, 2008. The social worker noted mother would continue to attend community twelve steps meetings. Mother’s substance abuse counselor reported that mother had obtained part-time employment, and participated in community-based events. She had submitted to random drug tests, all of which were negative (with the exception of a failure to test on July 3, 2007, due to the system being down), thereby demonstrating her ability to refrain from the use of illegal controlled substances on an ongoing basis. In November 2007, she enrolled in counseling for sexual abuse awareness, which is a 25-week course. She had not, however, enrolled in counseling for anger management or provided proof of enrollment.
The social worker also reported that father had made moderate progress with his case plan. He completed the counseling programs in parenting and child abuse and neglect, receiving certificates of completion in those programs in October 2007. Father had partially met the requirement to participate in counseling for substance abuse. He enrolled in counseling for substance abuse in July 2007, and attended 41 out of 43 sessions. Father’s substance abuse counselor reported that father would be required to enter substance abuse aftercare and attend six out of six individual sessions, three of which father missed. One of these absences was excused, but the other two were unexcused, and his completion date was tentative. During the review period, father’s drug tests were negative, with the exception of a confirmed positive test on June 27, 2007. Father was excused from drug testing on July 3, 2007, because the system was down. As of January 2008, father had failed to enroll in counseling for sexual abuse as a perpetrator.
The social worker stated that father and mother visited the children regularly. The social worker described the visits as being of “moderate quality.” The Department recommended that father and mother continue receiving services, with the boys remaining in out-of-home placement.
In a February 22, 2008, supplemental report, the social worker stated that mother told her she had enrolled in anger management counseling, which was to start February 11, 2008, but she had not provided proof of enrollment. The social worker received a verbal confirmation that mother had completed substance abuse counseling on February 22, 2008. Mother tested negative for drugs in December 2007 and January 2008. With respect to father, the social worker stated he had completed four counseling sessions for sexual abuse as a perpetrator and tested negative for drugs in December 2007 and January 2008.
During a February 7, 2008, visit with the boys, father told the social worker he and mother had moved to a new house because it was a little cheaper and did not have a swimming pool, unlike their old house. Mother told the social worker she would have her exit interview for her substance abuse classes on February 29, 2008. Father said his last class in substance abuse would be on February 27, 2008, and he was in after care. The social worker told father she would talk to his sexual abuse as a perpetrator counselor to work out a program limit because the counselor did not see a need for six months of counseling for something that occurred 30 years ago and had never recurred. The social worker noted that the visit with the boys was pleasant and uneventful.
The social worker explained that during the period under review, mother and father had taken initiative to make progress toward alleviating or mitigating the causes that brought the children into protective custody, and had visited the children on a regular basis, in which visits had been between moderate and good quality. The social worker concluded the recommendations from the previous social study remained appropriate, as additional time would provide the parents with an opportunity to complete their case plans and continue with “services to address their issues that would guide the parents when the children are return[ed] to them.”
At the February 26 review hearing, mother and father requested the boys be returned to them on family maintenance. Mother testified she currently was enrolled in the sexual abuse awareness class, which is a six-month class. She had not been given a completion date. She believed she was required to take the class because she had “been assaulted as a child so just to prevent further measures of my kids.” She had graduated from her substance abuse program the past Friday, had tested clean for the Department and did not believe she had an ongoing substance abuse problem. She testified she was enrolled in the anger management class, but could not start it until April 16. She believed she was required to take an anger management class “due to the fact the child L[] J[], they were feeling that I needed to take it because it – they felt that that was kind of out of hand so they just requested that I take that.”
Mother testified she had learned things about anger management in the other classes she had taken, such as different ways of how to cope with things that might be frustrating. She had been able to visit with all of the children at the same time. She described her visits with the boys as “happy” and “mellow.” She testified she had a three bedroom, one bath, house with a backyard, which was prepared for the children’s return. She affirmed her commitment to completing all of the court-ordered components and believed she had learned enough to have the children safely returned to her care. She denied she was still angry at L.J. over the situation which brought her family to the Department’s attention, and explained she was never angry at L.J., she was “more or less hurt.”
Father testified he had begun participating in counseling for sexual abuse as a perpetrator with a Department-approved counselor, which he thought would continue for six more weeks. Father also testified he had two more weeks of substance abuse counseling and would graduate on March 5. When asked if aftercare was required, father responded, “No, they didn’t say anything about aftercare.” Father said he was getting weekly two-hour visits with the boys every Thursday, which was the same amount he was given at the beginning of the case. The Department had never increased his visitation. Father testified he and mother had moved into a three bedroom, one bath, rental house on February 5. Father believed the house was adequate for the children if they were returned to his care. No one else was living in the home besides father and mother.
Although the social worker’s January 10, 2008, report showed that father was ordered to participate in counseling for physical abuse awareness, his progress on that aspect of his case plan was not explained in the report and was not listed as a failure on his part. Father testified at the review hearing that the social worker did not mention this class to him and he was not aware he was required to take it. The Department’s counsel requested a break so he could get father’s case plan. The court denied the request, explaining that since there was no discussion in the report that the class was something he needed to do or failed to do, it was “probably going to be persuaded by [father’s] testimony that it slipped through the crack” and the court did not want to spend a whole lot of time on it under those circumstances. When making its orders at the end of the review hearing, the court encouraged father and the Department to clear up this issue.
The Department argued against returning the boys to the parents’ care, since L.J.’s beating was a significant issue, yet mother had not begun her anger management component. The Department asserted the children could not be safely returned to her care until she had completed, or was a lot closer to completing, her plan. With respect to father, the Department argued he had not yet completed sexual abuse as a perpetrator and although he was close to completing his substance abuse program, he would be subject to whatever further requirements were imposed on him. The Department submitted that even though the parents had progressed in their case plan, failure to complete the plan placed the children at risk if they were returned to their parents. Mother’s counsel argued that the boys should be returned to mother because (1) she had completed enough of the case plan to safely protect them; and (2) visitation had not been increased. Mother’s counsel also argued reasonable services had not been provided because nothing was offered to help resolve the problems between L.J. and mother, such as family counseling. father’s counsel joined in mother’s counsel’s argument after pointing out that the sexual abuse counseling was based on a 1981 allegation and was only going to require a short amount of counseling. The children’s counsel argued against return until the parents completed their case plans, as they had not yet gotten to the application stage.
The court stated it was going to follow the Department’s recommendation. The court explained that it did not take the position that all the classes needed to be completed before the children could be returned. The court pointed out that the parents had done extremely well, as mother had attended 32 of 32 classes and father 41 of 43, and their substance abuse testing was “virtually perfect.” The court assumed father’s sexual abuse as a perpetrator program would be of limited duration, with only six weeks remaining, and noted he “basically has completed his plans within a period of time of less than two months.” The court stated that mother “needs to address anger management issues head on,” but she otherwise had done “excellent with everything.” The court explained the anger management issue was a significant one that needed to be resolved in much greater degree.
Based on the information contained in the social workers’ reports, the court found, inter alia, the boys’ out-of-home placements appropriate and necessary, and both mother and father had made “moderate progress towards alleviating or mitigating the causes for the [boys’] placement in out of home care,” as well as “acceptable efforts,” and had availed themselves of services provided to facilitate a return of the boys to their care. The court found that return of the boys to the physical custody of mother and father would create a substantial risk of detriment to the boys’ safety, protection, physical or emotional well-being. The court did not increase visitation, but encouraged the Department to do so, since mother and father had a lot on their plates, had “done an awful lot,” and were headed in the right direction.
DISCUSSION
Father challenges the sufficiency of the evidence supporting the finding that the boys would be at risk of detriment if returned to his care. Once a child has been removed from his or her parents’ custody under section 361, the juvenile court is required to review the child’s status every six months. (In re Joseph B. (1996) 42 Cal.App.4th 890, 897.) At the first review hearing held six months after the initial dispositional hearing, “the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e), para. 1.) Section 366.21, subdivision (e), further provides that the failure of a parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie proof that return would be detrimental. We review the court’s finding to see if substantial evidence supports it. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Father asserts there is insufficient evidence to support the detriment finding because both he and mother “made substantial, indeed, virtually complete compliance with the portions of their respective case plans that address the problems which led to the initial removal of the children.” As father acknowledges, there were two problems that led to the boys’ initial removal: (1) mother’s physical abuse of her daughter, L.J.; and (2) drug abuse by both parents in the children’s presence. While the record supports the conclusion that both mother and father had stopped using marijuana, thereby showing the second issue had been addressed, neither parent had completed the element of their case plan specifically designed to address the issue of domestic violence, i.e. mother had not begun counseling for anger management and father had not enrolled in counseling for physical abuse awareness. Although the juvenile court did not consider father’s failure to enroll in a physical abuse awareness program in determining whether he had made substantial progress with his case plan, the juvenile court was concerned that mother had not yet begun her anger management program, noting this was a significant issue that needed to be addressed. The juvenile court acknowledged mother had a lot on her plate and had made progress in her case plan, but the fact remained that mother had not yet begun the treatment program that would address the issue that brought the boys to the Department’s attention, i.e. the physical abuse of L.J. The order for anger management counseling was made at the August dispositional hearing, yet mother had not enrolled in the class until sometime in February and was not scheduled to begin the program until April. That mother had not yet begun this key component of her case plan, in our view, is prima facie evidence in itself that she failed to “participate regularly” in a court-ordered treatment program, as a failure to enroll in required programs or participate for a period of several months does not constitute regular participation.
In determining whether it is safe to return a child to the custody of an intact parental couple, the juvenile court must consider the potential detriment posed by each parent individually as well as collectively. Even assuming father made substantive progress with respect to his case plan, mother had not. The evidence showed that father and mother intended to continue to live together and requested the boys’ return to their custody at the home they both occupied. Given this, it was reasonable for the juvenile court to consider mother’s failure to complete counseling on anger management in determining whether the children could safely be returned to father’s custody. As the Department points out, substantial evidence supports the juvenile court’s finding that the boys’ return would create a substantial risk of detriment to their safety, protection, or physical and emotional well being since the boys were removed, in part, due to physical abuse of their half-sibling, neither mother nor father appeared to appreciate the seriousness and wrongfulness of that abuse when the boys were removed, mother and father lacked an external support structure such as family and friends, and mother failed to participate in or complete anger management counseling.
The cases father relies on do not compel a different result. In Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, the appellate court concluded the mother’s one time use of a pain-killer that contained codeine, when viewed in light of her exemplary performance on her case plan, did not justify the juvenile court’s conclusion that her child could not safely be returned to her custody at the 12-month review hearing, which had resulted in an order terminating reunification services. (Id. at pp. 504-506.) In David B. v. Superior Court (2004) 123 Cal.App.4th 768, the appellate court reversed an order terminating services because the father had done everything the social services agency had asked of him, and even requested anger management services on his own, and detriment to his child was not shown simply because he lived with a brother-in-law with a troubled history. (Id. at pp. 772-774.) Finally, in Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, the appellate court concluded the mother’s 84 negative drug tests and 9 missed tests over an 18-month period constituted substantial compliance with the drug treatment aspect of her case plan and there was no evidence supporting the juvenile court’s finding of detriment where the children were removed because she left them alone in a motel while she went to work and no evidence was presented linking the mother’s marijuana and alcohol use to her parenting judgment or skills. (Id. at pp. 1343, 1346.) All of these cases are distinguishable, as in them the parents had completed their case plans to the extent that the issues that led to removal had been resolved. In contrast here, mother and father have not even begun to address the anger management components of their case plans.
Father points out the juvenile court failed to articulate the factual basis for its detriment finding as required by statute, and argues that failure compels a reversal of the court’s decision and remand for either the making of such a finding or return of the boys to him. We disagree that the failure requires reversal. While the court was required to specify “the factual basis for its conclusion that the return would be detrimental” (§ 366.21, subd. (e)), its failure to do so does not require reversal “where ‘it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.’” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218; see also In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) Because we find the juvenile court’s decision is supported by substantial evidence, we conclude any error in failing to specify a factual basis is harmless. It is not reasonably probable that the proper findings, if made, would have been in favor of continued parental custody.
In sum, although mother and father had made progress in the months preceding the hearing, the juvenile court properly could conclude mother needed to complete anger management counseling before the boys could safely be returned to what would effectively be her and father’s custody. Substantial evidence supports the trial court’s finding that it would be detrimental to return the boys to father’s care.
DISPOSITION
The juvenile court’s order is affirmed.
WE CONCUR: Dawson, J., Hill, J.