Opinion
F080168
02-07-2020
M.B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
John W. Stovall III for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JVDP-18-000101, JVDP-18-000102, JVDP-18-000103)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. John W. Stovall III for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Petitioner M.B. (father) seeks an extraordinary writ from the juvenile court's orders issued at a contested 12-month review hearing terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his now five- and three-year-old daughters, Z.G. and N.G., and 18-month-old son, Benjamin G. (the children). Father contends the children must be returned to his custody as there was insufficient evidence to find it would be detrimental to them. Alternatively, he contends the court must continue reunification services because he was not provided reasonable visitation and there was a substantial probability he could reunify with the children if given more time. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In July 2018, the Stanislaus County Community Services Agency (agency) received notice that Jasmine G., the children's mother, tested positive for marijuana while giving birth to Benjamin and that Benjamin tested positive for methamphetamine. Benjamin was not Jasmine's first drug-exposed baby. In January 2017, Jasmine and newborn N.G. tested positive for marijuana and methamphetamine. The agency offered Jasmine voluntary family maintenance services, but she refused them.
Jasmine admitted using marijuana during her pregnancy with Benjamin but could not remember when she last used methamphetamine. She thought it could have been early in her pregnancy. She attributed Benjamin's positive result to in utero exposure by the maternal grandmother who used methamphetamine in her home, which she shared with Jasmine and the children during Jasmine's pregnancy. Z.G. and N.G. were tested for exposure by hair follicle analysis. Z.G. tested positive for amphetamine and N.G. tested positive for marijuana. Jasmine was no longer living with her mother and was homeless. She said she could not go back because it was not safe for the children. In addition to the methamphetamine use, there was no electricity or running water. Father was going to reserve a hotel room for them.
Father denied knowing that Jasmine used methamphetamine during her pregnancy. He said he lived in Atwater with his brother. He and Jasmine had a history of domestic violence and his last criminal activity occurred 20 years before when he participated in a burglary. He admitted using marijuana. He planned to get a hotel room for him and the children and to obtain layette items for Benjamin. However, after father failed to act, the agency took the children into protective custody and placed them in foster care.
The agency filed a dependency petition on the children's behalf, alleging the parents failed to protect them as described under section 300, subdivision (b)(1). The specific factual allegations pertained mostly to Jasmine and her substance abuse, mental illness and failure to provide the children adequate housing and appropriate medical treatment. The factual allegations as to father concerned several arrests for driving under the influence from 2008 and 2011 and more recently, domestic violence incidents involving Jasmine. Notably, in March 2018, father reportedly punched Jasmine in the face. She was five months pregnant and the children were present. According to the police report, Jasmine had a laceration across the bridge of her nose and was bleeding heavily. There was blood on the kitchen floor and a broken window.
The agency referred the parents to Sierra Vista Child and Family Services (Sierra Vista) for individual counseling, domestic violence and parenting education. It also instructed them to complete a substance use disorder (SUD) assessment. Jasmine completed her intake at Sierra Vista and attended some parenting classes. She was assigned a clinician but was not attending individual counseling sessions. She also completed a SUD assessment and was referred for inpatient substance abuse treatment. She tested positive for marijuana and amphetamines upon her admission. She left the facility six days later. Father was also assigned a clinician at Sierra Vista for domestic violence counseling as an offender but had not completed a SUD assessment.
In its jurisdictional/dispositional report, the agency recommended the juvenile court offer Jasmine reunification services but deny father services under section 361.5, subdivision (a) because, although he was the children's biological father, providing him services would not benefit them. The children never lived with father and he did not have a significant relationship with them. Other than birthdays and a few other yearly visits, he did not have contact with them. In addition, he was legally married and had another family.
Three days after the agency filed its report, father and Jasmine executed voluntary declarations of paternity for all three children, thereby establishing him as their presumed father. Nevertheless, the agency recommended the court deny him reunification services under section 361.5, subdivision (e)(1) because he was arrested on October 30, 2018, for first degree burglary and infliction of corporal injury on a spouse.
In November 2018, the juvenile court exercised its dependency jurisdiction, removed the children from parental custody and ordered Jasmine to participate in reunification services. The court ordered the agency to develop a reunification plan for father and set a six-month review hearing for May 2019. Father's case plan required him to complete individual counseling and a parenting program at Sierra Vista, a 52-week domestic violence program for perpetrators, a SUD assessment and participate in random drug testing. It also included weekly supervised visitation. Father was admitted later that month for intensive outpatient treatment and tested positive for marijuana during the intake.
In February 2019, the juvenile court conducted a progress review hearing. The agency informed the court that Jasmine was homeless, and father was looking for his own housing. He completed 17 domestic violence classes and 10 parenting classes and tested negative for drugs. However, on January 26, 2019, he was arrested for violating an order protecting Jasmine. Jasmine was participating in her services but left sober living in December 2018 and admitted using methamphetamine several days after the January incident with father. The court admonished Jasmine about the consequences of not engaging in services and told father to stay away from her. In April 2019, the court appointed a court appointed special advocate (CASA).
At the six-month review hearing in May 2019, the juvenile court terminated Jasmine's reunification services for noncompliance. She attempted substance abuse treatment the month before but left three days later against staff advice. She admitted she knew what she needed to do but did not want to do it. The court continued services for father and set the 12-month review hearing for September 2019.
By September 2019, father successfully completed individual counseling services, a parenting program and substance abuse treatment. He also completed 37 domestic violence classes, although he was reportedly lacking in insight. Despite his overall progress, the agency suspected he maintained contact with Jasmine. Though he denied it, he continued to give her money. In addition, he did not visit the children from March 22 to June 6, 2019. The agency did not believe the children could be returned to father's custody with continued services and recommended the juvenile court terminate reunification efforts at the 12-month review hearing.
The juvenile court set a contested 12-month review hearing for October 10, 2019. Meanwhile, the foster parents requested de facto parent status, which was set for a hearing and combined with the 12-month review hearing. After calling the hearing on October 10, the court granted the de facto parent request and began a two-day hearing. Mother did not personally appear on either day.
Therapist Judi Schardijn led father's domestic violence group sessions. He had nine more weekly sessions to complete the 52-week program. She considered him a "success story" and rated him a "low" risk for further abuse. She increased his risk to "moderate," however, after county counsel informed her that father disclosed only one domestic violence incident to her but was the perpetrator of two incidents eight months apart; one on July 18, 2017 and one on March 25, 2018. Schardijn believed, however, father could reduce his risk to "low" within the nine remaining domestic violence sessions.
Father testified he had five other children; three were in college and two, ages six and 10, lived with him and his wife. The six- and 10-year-old children had not met the children. The children could live with him and his wife, but his plan was to live by himself with the children. He saved money to get an apartment and filled out rental applications. He felt confident he could secure an apartment fairly soon. On cross-examination, though, he said he planned to bring the children home to him and his wife. He denied seeing Jasmine but gave her money several months before by depositing it on a debit card for her. He didn't visit the children from March through June 2019 because he was incarcerated and had gallbladder surgery. He also missed some visits because he was late and had court dates to attend.
Asked why the court should continue reunification services for him, father stated he wanted the children with him. He believed he could raise them since he successfully raised other children. As for the domestic violence, he said Jasmine was the only person with whom he had domestic violence incidents. To clarify, the court asked, "You're saying it was her that caused you to be domestically violent?" He responded, "I think so." He did not believe he would reoffend.
Social worker Denise DeCroix did not believe the children could be safely returned to father's custody because he had not taken the initiative to prepare for their return. He did not tell her the woman he was living with was his wife. He said she was his ex-wife. Nor did he tell her the children could live in the home he shared with his wife and children. In addition, he missed seven out of a possible 16 visits, which delayed any significant bonding with the children. The lack of bond would make them feel insecure. She was also concerned about the domestic violence between him and Jasmine and his continued contact with her by giving her money.
Father was recalled and testified his other children lived with him from birth through adulthood and child protective services (CPS) was never contacted concerning them. He told DeCroix the children could live with him but did not ask to have his home assessed for placement.
Also recalled, DeCroix testified her opinion the children could not be safely placed with father was unchanged by his testimony he raised his other children without CPS involvement. She could not assess their safety because father had not progressed beyond supervised visitation and she did not believe he could progress to overnight visitation by January 2020, which marked 18 months from the children's initial removal.
The CASA described the children's most recent visit with father, which occurred a week before and lasted two hours. She described it as "difficult," especially for Z.G., who acted out for most of the visit, throwing books around the room and dumping out toys. Sometimes she was having a fit and cried a very deep cry. The CASA said it was "very painful to hear her crying and screaming like that." People walking through the hallway of the visitation center stopped three times to see if everything was alright. Since the CASA had never seen Z.G. act that way before, she went home with the foster family, so she could observe her there. She stayed with the children for about 45 minutes to an hour in the foster home. Once the children settled in, they were cuddly and wanted to sit close to the foster mom on the couch. Z.G.'s behavior at home was a stark contrast to her behavior at the visitation center. The CASA told the court father was not inappropriate with the children, but it was difficult for the girls to get his attention.
The juvenile court found it would be detrimental to return the children to father's custody, noting he did not have a significant relationship with them when they were removed from Jasmine and did not maintain regular supervised visitation with them or progress to more liberal visits. Additionally, he did not introduce them to his wife or their half siblings or make any attempt to move out on his own to establish a home for them. The court also found the agency provided father reasonable services but that he did not regularly and consistently visit the children and did not make significant progress in addressing his domestic violence issue as evidenced by his testimony that Jasmine caused him to be violent. The court found there was not a substantial probability the children could be returned to father's custody by the 18-month review hearing, terminated his reunification services and set a section 366.26 hearing for February 18, 2020.
DISCUSSION
I. Detrimental Return
Father contends the only evidence offered by the agency to prove that it would be detrimental to return the children to his custody was DeCroix's testimony that they would feel insecure. Such speculative evidence, he argues, is insufficient and constitutes reversible error. We disagree the court erred, concluding other substantial evidence supports the juvenile court's detriment finding.
California's dependency system is designed "to protect children from harm and to preserve families when safe for the child." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424 (Tracy J.).) During the reunification period of a dependency case, the primary focus is on preserving the family by addressing the issues that led to dependency jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means until reunification services have been terminated, "family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody." (Tracy J., at p. 1424.) Once reunification services are terminated, however, the focus shifts to finding the child a safe and permanent home. (Ibid.)
At each review hearing following disposition, "there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court, therefore, must return the child to parental custody unless it finds by a preponderance of the evidence that doing so would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (See §§ 366.21, subds. (e)(1) & (f)(1), 366.22, subd. (a)(1).) It is the agency's burden to prove the child would face some actual, nonspeculative risk if returned to parental custody. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.)
"The 'substantial risk of detriment' standard 'must be construed as a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' " (In re E.D. (2013) 217 Cal.App.4th 960, 965.)
"In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement." (In re Yvonne W., supra, 165 Cal.App.4th at p. 1400.)
We review a juvenile court's detriment finding for substantial evidence. (Tracy J., supra, 202 Cal.App.4th at p. 1424.) " ' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.]' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.' " (Ibid.)
Here, the agency removed the children from father's custody because he did not have a home for them and made no effort to secure one. A year later, nothing had changed. Father testified he planned to live with the children in an apartment but had done nothing more than apply. He also testified he planned to receive the children into the home he was sharing with his wife and other children but had not informed the social worker or asked the agency to assess his home. Consequently, the court could not determine the children's safety if they were returned to father's custody at the 12-month review hearing. On that evidence alone, the court could find it would be detrimental.
There was also evidence father remained at risk of engaging in domestic violence. Despite nearly a year of counseling, he had limited insight into his violent behavior. He blamed Jasmine for it, telling the juvenile court it only happened with her. At the same time, he refused to cut ties with her despite the protective order and their volatile history. Until father better understood how his behavior contributed to the violence and took protective measures to prevent it, the children would be at risk of physical and/or emotional harm if placed in his custody.
II. Reasonableness of Services
Father contends the services provided to him were not reasonable because the agency failed to advance visitation through overnight visits to a trial visit and assess his home for placement. We disagree.
Reunification services are intended to facilitate the return of a dependent child to parental custody. Of the services provided, visitation is arguably the most critical. (In re T.G. (2010) 188 Cal.App.4th 687, 696-697.) "An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children 'as frequent[ly] as possible, consistent with the well-being of the minor.' " (In re Julie M. (1999) 69 Cal.App.4th 41, 49-50.) Section 362.1, the general visitation statute, requires the juvenile court to order visitation whenever it places a child in foster care and orders reunification services for the parent. (§ 362.1, subd. (a)(1)(A).)
The statute provides, as relevant here:
"In order to maintain ties between the parent ... and the child, ... any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) [V]isitation between the parent ... and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(A) & (B).)
Thus, the power to determine the right and extent of visitation is a judicial function, which must be made by the juvenile court. The specifics of visitation, however, demand flexibility to "maintain and improve the ties between a parent ... and child, while, at the same time, protect the child's well-being." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) "To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur." (In re S.H. (2003) 111 Cal.App.4th 310, 317.)
"The adequacy of reunification plans and the reasonableness of the [department's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) To support a finding reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ...." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
On a challenge to the juvenile court's reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile court's finding, we will not disturb it. (Ibid.) As father bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), he must show that the juvenile court's finding he was provided reasonable reunification services, including visitation, is not supported by substantial evidence. We conclude he has failed to make such a showing.
Despite over a year in which to reunify with the children, father had not advanced beyond supervised visitation, not because the agency was derelict in its duty to assist him but because he was not demonstrating it would be appropriate to do so. He missed nearly three months of visitation with the children from March to June 2019, partly because he was involved in criminal proceedings. Even after resuming visitation, he continued to miss visits. In addition, although he was in technical compliance with his services plan, there was the concern he maintained contact with Jasmine, which placed him at risk of engaging in domestic violence. Until father could demonstrate the children would be safe in his care without supervision, there was no reason to believe more liberal visitation was indicated. Nor was there an urgency about assessing any home in which the children might live, be it the home he shared with his wife or an apartment he procured.
III. Substantial Probability of Return
Father contends the evidence, when applied to the three factors the juvenile court must consider in evaluating the likelihood of return, compelled a finding in his favor. We disagree.
At the 12-month review hearing, the juvenile court may continue the case if there is a substantial probability the children will be returned to parental custody within 18 months from the time the children initially were removed. (§ 366.21, subd. (g)(1).) In this case, that date would fall in late January 2020, approximately three months after the conclusion of the 12-month review hearing. To find a substantial probability of return, the juvenile court had to find father regularly visited the children, made significant progress in resolving the problems that led to their removal, and demonstrated the capacity and ability to complete the objective of the case plan and provide for the children's safety, protection, and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) Otherwise, the juvenile court must terminate reunification services and set a section 366.26 hearing to implement a permanent plan for the children. (§ 366.21, subd. (g)(4).)
Here, the juvenile court found father failed to satisfy the first prong because he did not regularly visit the children, stating "he missed a very significant period of time Father contends the court was referring to his failure to visit during the months of March through June 2019, most of which fell within the first rather than the second reporting period. Therefore, he argues, the court erred in considering it. We disagree. The court is not required to ignore relevant evidence concerning a parent's progress just because it pertains to the prior review period. Father's three-month gap in visitation was significant not just in its duration but because it began eight months into a yearlong reunification period. Further, he continued to miss visits after he resumed visitation in June. The court could rightfully consider the totality of father's visitation efforts in assessing the substantial probability of return and conclude he did not regularly visit the children. In addition, the court could find based on father's continuing contact with Jasmine and perception of her alone as the cause of his domestic violence incidents that he had not made significant progress in resolving his domestic violence problem.
We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).)