Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. Nos. J06-00599 & J06-00600
Siggins, J.
Jeremiah S. (Father), the father of six-year-old N.S. and one-year-old D.S., petitions under California Rules of Court, rule 8.452 to vacate an order of the juvenile court setting a hearing under Welfare and Institutions Code section 366.26 that may result in termination of his parental rights. Father argues that the evidence presented at the 18-month review hearing was insufficient to allow the court to conclude that returning the children to his care would create a substantial risk of detriment to their physical or emotional safety and well-being. We conclude substantial evidence supports the court’s order and deny the petition on its merits.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
N.S. was born in November 2001 and D.S. was born in February 2006. They “came to the attention of Children & Family Services [the Bureau] when a referral was made because [D.S.] was born with a positive toxicology for cannabinoids and [Mother] tested positive for methamphetamines and cannabinoids. The investigation discovered that both parents had a long history of substance abuse and domestic violence.” In March 2006, the children were removed from their parents’ home, and the Bureau filed petitions to protect pursuant to section 300, subdivision (b), claiming a substantial risk to the children’s safety and well-being. The Bureau alleged both parents’ “serious and chronic substance abuse problems that significantly impair[ed their] ability to adequately care for [the] children,” “an extensive history of domestic violence,” and Father’s “serious mental illness.” In mediation Father admitted the allegations that he had “a chronic substance abuse problem that impairs his ability to adequately care for his children,” “a history of domestic violence, including but not limited to a recent incident in the child’s presence,” and “a mental illness that impairs his ability to adequately parent his children when father is not in treatment.” The children were placed in foster care and the court ordered reunification services. Services were continued at the six-month review hearing.
Mother also admitted a chronic substance abuse problem and a history of domestic violence.
At the 12-month review hearing, the court terminated services for Mother. The children were with maternal relatives and had twice monthly supervised visits with their parents. The reports prepared for the hearing stated that Father continued to work on his case plan, and would need to maintain a stable income to provide for his children. Father was approved for overnight visits, and the report states he was “encouraged several times to make more of an effort to call his children, especially [N.S.] who has verbalized her desire to talk to her father more often.” Services for Father were continued.
In the report prepared for the 18-month contested review hearing, the Bureau recommended that Father’s services be terminated and a hearing be scheduled to consider termination of parental rights. Father was then living with his sister, but the social worker learned Father “was not authorized to live there and his sister could not have overnight guest[s] more than two weeks per year. When informed that he would have to secure stable and appropriate housing to begin his extended visit with the children, [Father] stated that he may begin renting a home . . . .” Father was previously reported to be an unauthorized tenant in his girlfriend’s subsidized housing. He also told the social worker he was living with his grandmother, in a home determined to be suitable, but his grandmother told social workers that he declined to live there.
At the time of the 18-month hearing, Father had not made any arrangements for child care. He was employed doing odd jobs for friends and was encouraged by the social worker to apply for general assistance. He told the social worker he had applied, but could not locate any documentation to substantiate that fact. The social worker later learned that Father never applied for benefits. Although Father “[was] aware that he needs stable housing and stable income to provide for the children’s needs,” he claimed not to require any assistance from the Bureau in obtaining a job or housing. Father testified he was a handyman who did jobs for elderly and disabled people, and produced some receipts to show the dates he was paid for odd jobs. Father said he was “looking at a different more stabler job for winter purposes.” He also expressed his regret that he had not communicated more regularly with the social worker.
During his first unsupervised weekend visit a few weeks before the hearing, Father took the children on an unapproved visit to their Mother, left D.S. with Mother overnight, and told N.S. to keep the visit secret. Father’s directive to N.S. was reported to cause her great anxiety. Her therapist reported that N.S. became “confused, scared and torn when asked to collude with her parents” and appeared to believe “that in order to be reunited with her father and[/]or continue visitation, she must lie in her parent’s defense.” Father did not seem to understand the emotional impact his instruction to keep secrets was having on the children. Father admitted he left D.S. with Mother overnight “against [his] better judgement,” but he was not concerned about the baby’s safety because Mother’s live-in boyfriend “seems to be a very outstanding individual” and Mother “did not seem to be under the influence of [drugs].”
When first asked about D.S.’s unauthorized overnight visit with Mother, Father was “adamant that this did not occur . . . [and] use[d] foul language towards [the] social worker when his visits were returned to supervised . . . .” He admitted the incident in a later meeting with the social worker.
The children were residing with their maternal grandfather, but N.S. had told social workers she wanted to live with her parents. As part of his reunification efforts Father completed a domestic violence program and participated in counseling. The Bureau reported that Father “has done well in addressing his mental health issues that caused many of the domestic violence [incidents with Mother].” But Father visited the children only once a month and did not call the children during the month before the hearing. Father explained at the hearing that he could not call N.S. because he destroyed his cell phone when he accidentally ran over it. Father had missed five of eleven drug tests in the two months before the hearing without providing any explanation to the social worker. His case plan provided that a missed test would be considered a positive test.
Father testified he “was under the impression that [his] visitation [had] changed [from twice a month to once a month]” after he left D.S. with Mother, but he did not recall who told him that.
Counsel for the children supported the Bureau’s recommendations to terminate services and schedule a hearing to possibly terminate parental rights. Counsel cited Father’s “profound lack of judgment,” his “lack of commitment” to the children, and his lack of credibility as reasons supporting her position.
The court commended Father’s efforts in the areas of domestic violence and counseling, but was concerned about Father’s relatively infrequent visits with the children and his failure to maintain phone contact. The court stated that from Father’s missed drug tests “one could make a very strong argument that Dad didn’t test negative because when Dad used, Dad didn’t show up to test.” The court also considered Father’s explanations for some of the events “a bit lacking in credibility,” and the contact with Mother was “[m]ore than a little scary.” The court considered “it was highly inappropriate to allow [D.S.] to go off with Mother contrary to the direct order of this Court and the [Bureau’s] and the case plan,” and determined “one could logically conclude that dad’s efforts in this regard and dad’s progress has been nothing more than to have the children get back with Mother.” The court observed that Father might be able to file a future section 388 petition based on change of circumstances, but concluded that return of the children at the time of the hearing “would create a substantial risk and detriment to [their] physical or emotional safety and well-being.” The court terminated Father’s reunification services and ordered a permanency planning hearing pursuant to section 366.26. Father has filed this writ petition seeking review of the court’s orders.
DISCUSSION
Section 366.22 provides that following the 18-month permanency review hearing, “[t]he 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. The social worker shall have the burden of establishing that detriment.” (§ 366.22, subd. (a).) We determine whether substantial evidence supports the juvenile court’s findings and do not “reweigh conflicting evidence” on appeal. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Father argues that he substantially complied with his case plan, and the Bureau did not show a substantial risk of detriment to the children’s safety and well-being were they to be returned to his custody. The juvenile court acknowledged Father’s progress in certain areas of his case plan, but concluded that his failure to comply with other requirements showed he could not safely care for his children. The court’s conclusion is supported by substantial evidence.
Father had a chronic substance abuse problem that impaired his ability to care for his children. He missed five drug tests in two months just before the hearing. He visited his children only once a month and failed to contact them by telephone at all in the month before the hearing. During his first (and only) unsupervised overnight visit with his children, Father left baby D.S. alone with Mother when he knew that the court had ordered that her visits with the children be supervised and that her reunification services were terminated due to her noncompliance with her case plan. Father also told N.S. to conceal her baby brother’s overnight visit with Mother, and apparently did not understand that N.S. was traumatized by his instructing her to lie.
Father relies on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 to argue he has substantially complied with his case plan. But Jennifer A. is very different. There, the children were detained after their mother left them alone in a motel while she went to work. The appellate court in Jennifer A. described mother’s failure as “long ago resolved” by the time of the 18-month review hearing. (Id. at pp. 1326-1327.) Substance abuse was not alleged as a ground for detention in Jennifer A., and there was no determination that the mother had a substance abuse problem, although she acknowledged occasionally using marijuana, tested positive for marijuana on two occasions, and missed approximately nine of 95 drug tests she was obligated to take. (Id. at pp. 1327, 1343.) The social worker in Jennifer A. “believed Mother did not have a drug problem that affected her parenting skills” (id. at p. 1337), and “the evidence did not link substance use or abuse with Mother’s lapse of judgment in leaving the children at home alone.” (Id. at p. 1327.) The mother in Jennifer A. also visited her children daily during family reunification, had a steady job, and a stable residence. (Id. at pp. 1331, 1335-1336, 1345.) The appellate court specifically observed that the circumstances in Jennifer A. were “striking[ly]” different from “the usual dependency case,” and concluded the evidence did not support the finding that returning the children to their mother’s custody would create a substantial risk of detriment to their safety or well-being. (Id. at pp. 1326-1327, 1345-1346.)
The mother in Jennifer A. also allowed the father to visit her and the children without the social worker’s authorization, and on one occasion she hired an unapproved babysitter who had a prior drug arrest when the maternal grandmother who usually cared for the children was unavailable. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pp. 1332, 1339.)
Here, Father pled no contest to a chronic substance abuse problem that was linked to his history of mental illness and domestic violence. Father missed five drug tests in two months and he had no credible explanation for the missed tests. Father’s residence and income were variable and unstable and he repeatedly provided questionable information to the social worker.
Father’s limited visitation and lack of telephone contact with the children were also of legitimate concern. On his first overnight visit, Father left the baby with the children’s mother, knowing the court had ordered her visits to be supervised, and he told his older child to conceal his misconduct. Our review of the record confirms that substantial evidence supports the juvenile court’s conclusion there was a substantial risk of detriment to the safety and well-being of N.S. and D.S. if they were returned to Father’s care.
DISPOSITION
The order to show cause is discharged, and the petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452; In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Rule 8.264(b)(3).)
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.