Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCSCJVSQ07-5051001
RAYE, Acting P. J.M. P. (petitioner), the father of J. H. (the minor), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Petitioner contends the juvenile court erred by not returning the minor to his custody. We agree and, accordingly, shall issue a peremptory writ of mandate directing the juvenile court to vacate its orders and return the minor to petitioner’s care.
Early in the proceedings, the minor’s mother informed the juvenile court that the minor’s name is A. P. and that this name appears on the minor’s birth certificate. The minor’s name appears alternatively as J. H. and A. P. throughout the record.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007 a dependency petition was filed by the Siskiyou County Human Services Department (the Department) concerning the two-month-old minor, who was born with severe medical problems, including gastroschisis (an abnormality of the placement of the intestines, which was corrected shortly after the minor’s birth) and craniosynostosis (in which the skull bones are inflexible and fused, prohibiting normal brain growth). The mother admitted she used alcohol, marijuana, and cigarettes during her pregnancy. Staff at the hospital, as well as the minor’s doctor, expressed concern that the mother did not appear able to care for the minor without assistance, and she did not obtain necessary support services. In addition, the petition alleged that petitioner, who lived with the mother at the time, initially was unaware of the mother’s neglect of the minor, who continued to experience “concerningly slow weight gain” after petitioner became aware of the concerns regarding the mother’s care. Furthermore, petitioner and the mother were late in making a follow-up medical appointment for the minor that they had been instructed to schedule.
The allegations in the petition were sustained and reunification services were ordered. Objectives for petitioner included that he demonstrate an ability to provide adequate care for the minor’s special needs, and services were geared toward learning to care for a medically fragile infant.
According to the report prepared for the six-month review, the minor had received surgery to repair her skull. Petitioner was no longer living with the mother and was participating in services. The mother, however, had continued to use marijuana and exhibited confusion when dealing with service providers. At the six-month review hearing, the mother’s reunification services were terminated, but services for petitioner were continued.
By the time of the 12-month review, it had been determined that the minor needed additional surgery because the back of her skull was fusing together. Additionally, it was reported that the minor had suffered multiple respiratory infections requiring emergency care and daily breathing treatments. She also had chronic ear infections. The minor also was scheduled for an eye exam because she appeared to have no tear ducts, and there was an additional concern about spinal abnormalities in the minor’s neck area. The minor was receiving physical therapy through the Far Northern Regional Center and was being seen at U.C. Davis Medical Center for follow-up care.
Meanwhile, petitioner was having regular, unsupervised visitation with the minor, including weekly, three-hour visits in his home, and he continued to cooperate with all services. However, petitioner’s driver’s license was suspended and there was concern that he would not be able to get the minor to medical appointments. The Department recommended that petitioner continue to receive reunification services.
At the 12-month review hearing, the minor’s attorney sought termination of petitioner’s services. After a contested hearing, the juvenile court ordered six more months of services.
Shortly after the review hearing, the minor’s foster mother was granted de facto parent status. Prior to the 18-month review, the foster mother filed a “Caregiver Information Form,” in which she reported that, during a visit, petitioner had misidentified the minor’s asthma attack as a cough, and the minor had to be taken to the emergency room by the foster mother after the visit. The foster mother filed numerous attachments with the caregiver information form. These included a letter from the minor’s pediatrician expressing concern about petitioner’s ability to care for the minor’s multiple medical needs and to follow through with recommendations for treating her upper respiratory infections and asthma. The foster mother also attached a calendar for the current and three preceding months, noting, among other things, medical appointments for the minor that petitioner had missed or for which he arrived late, dates on which the minor was “filthy” when she returned from visits with petitioner, and occasions on which petitioner did not dress the minor appropriately for cold weather.
According to the social worker’s report for the 18-month review, petitioner continued to cooperate with services, and the minor spent weekends with him as well as two extended holiday periods. The foster care agency reported that visits with petitioner, including two overnights per week, seemed to be going well. However, concerns about petitioner still persisted: the minor had lost a pound during the previous month, petitioner smoked cigarettes and wore dirty clothes while the minor was in his care, and the minor returned from visits with dirty hands and clothes. The social worker reported that petitioner recently was laid off work and that once the minor was in his custody, he planned to move to the area where his family lived so they could help him with the minor’s care. The social worker recommended the minor be returned to petitioner with family maintenance services to assist him in “improv[ing] his competence in providing [her] medical care.”
At the 18-month review hearing, the social worker testified, that petitioner had received in-home services from Far Northern Regional Center and the Head Start program to assist him in learning how to care for the minor. She felt the minor should be returned to petitioner because he had visited her consistently and had worked hard to get her back.
The social worker testified about various concerns that had been expressed regarding petitioner. One such concern was that the minor’s diet lacked fruits and vegetables, and the social worker recommended that the family maintenance plan include work with a dietitian. The social worker also acknowledged that petitioner still did not have a valid driver’s license. The social worker did not feel that petitioner’s lack of personal cleanliness was a concern, as the minor seemed to be clean, although she acknowledged that the foster mother had shown her pictures indicating a concern in this regard. And although petitioner smoked, the social worker had not seen any evidence he smoked in his home or in enclosed areas around the minor. The social worker acknowledged that following the 12-month review hearing, petitioner was instructed to attend the minor’s doctor’s appointments and that he had attended only a small percentage of them.
The paternal grandmother testified that if the minor were returned, petitioner would live with her husband and her at first, and then he would move to a rental 20 miles away. The minor had spent the Thanksgiving and Christmas holidays with their family. The paternal grandmother had driven petitioner to the minor’s medical appointments and had attended appointments herself, was familiar with the minor’s medical needs, and had acquired a pediatrician in their area. She testified that if the minor was reunified with petitioner, she would be available to provide back-up care for the minor and would help petitioner financially if he needed it.
The foster mother testified that about one month before the hearing, the minor’s doctor put her on a regimen of Pulmicort twice a day in addition to Xopenex (which she was already taking) because she was “declining” in terms of respiratory distress. The foster mother gave petitioner instructions on how to administer these medications.
Petitioner testified that he needed to pay a fine in order to obtain his driver’s license. He intended to rely on his family or utilize public transportation to take the minor to medical appointments, and if she had a medical emergency in the middle of the night, he would call an ambulance. Petitioner confirmed that he did not smoke inside his home. He acknowledged that the minor refused to eat many types of vegetables and that she usually spit out fruit when he tried to give it to her.
Petitioner explained that he gave the minor two different kinds of breathing treatments when she was with him but he did not remember the names of the medications. At the minor’s last appointment with her pediatrician, which had been earlier that week, the pediatrician stated that the minor no longer needed breathing treatments because she appeared to be “doing fine.”
The minor’s pediatrician testified that until the minor’s appointment earlier in the week, she should have been receiving Pulmicort twice a day with Xopenex, which could be utilized two additional times a day if needed. However, petitioner testified that during the five-day visit he had with the minor shortly before the hearing, he gave her Xopenex but not Pulmicort, which was what he believed the foster mother had instructed him to do. Additionally, he thought Xopenex was to be given every six hours and Pulmicort was given “every four hours... or every two hours.” However, according to the pediatrician, “[the] risk is extremely minimal” from providing a young child with too much Pulmicort.
The pediatrician testified that the minor’s problems with respiratory infections and asthma had lessened over the preceding six months, and her chronic ear infections were being managed successfully with a low dose of antibiotic. He felt that the minor’s asthma would “probably eventually not be a problem.” According to the pediatrician, during the minor’s most recent exam, which had occurred earlier that week, “her weight was stable and everything checked out okay.” Likewise, other than the minor’s head shape, her exam the previous month had been “normal,” in that she was growing and gaining weight normally and was not ill. When asked what type of day-to-day care the minor required, the pediatrician stated that the minor needed to be watched closely whenever she got a respiratory infection to prevent triggering her asthma, and she would need “pretty careful care” following her upcoming surgery.
According to the pediatrician, being around someone who smoked would not be a problem for the minor if the smoking occurred only outside. He also opined that while it was “probably... better” if the minor was not exposed to someone whose clothes or person were dirty, he was “not sure” it would be “terribly harmful” as long as the minor was kept clean. The doctor had not observed petitioner’s personal appearance “to be a problem” during the minor’s medical appointments.
The pediatrician testified that his biggest concern with regard to petitioner’s ability to care for the minor was that he had not been involved in the minor’s care until “fairly recently.” He also expressed concerns about petitioner’s transportation issues in terms of getting the minor to medical appointments in Davis and the fact that being out in the cold in a stroller could affect a “skin issue” she had. The doctor ultimately explained: “I just have general concerns overall that I am not sure in the best interests of [the minor] that she will receive the care that be [sic] best for her if she continues -- or if he takes over her care.” He acknowledged that although he still had the same concerns as at the time of the 12-month review, “the degree of [his] concern” was less and petitioner seemed to be “doing better” with the support he was receiving. He admitted he could not say “to a reasonable medical certainty” that petitioner could not care for the medical needs of the minor.
The juvenile court ruled that although petitioner had availed himself of services and made significant progress, a preponderance of evidence established that returning the minor to him would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. The court based its ruling on a number of factors: (1) the minor’s “significant and unusual birth defects” and health problems, which would require further surgery, her placement with the same foster parent throughout and petitioner’s intent to move several hours away, “which would essentially eliminate the one consistent caregiver from [the minor’s] life”; (2) petitioner’s lack of a driver’s license such that “if he were to need to go out for whatever needs he may have, he either has to get a ride from someone or he has to walk”; (3) the fact that petitioner took the minor out in a stroller numerous times and “[the minor’s doctor] testified that exposure to the cold is certainly a problem for this child”; (4) the fact that petitioner smokes when he walks the minor in her stroller, so “rather than being able to bundle the [minor] up, put her in a car and drive to the grocery store... he would have to put her in the stroller, walk her along traffic where she would be subject, if not to his own cigarette smoke and [sic]automobile exhaust”; (5) that petitioner would be 18 miles from the paternal grandparents, which “would be very difficult for [petitioner] without a driver’s license”; (6) petitioner’s testimony that he would use public transportation, which “brings up the prospect of exposing the [minor] to whatever contagious issues people on buses have”; (7) petitioner’s “difficulties with hygiene,” including information from the foster mother concerning the minor’s condition on return from a multi-day visit, raising the concern that petitioner could not keep the minor “in a hygienic state,” which would place her, with her serious medical conditions, at risk; (8) petitioner could not describe an appropriate approach for getting fruits and vegetables into the minor’s diet; and (9) petitioner’s “lack of ability to describe... not only the names of the medications, but the frequency with which they were to be administered,” in particular his misunderstanding regarding the frequency to administer Pulmicort. With regard to this last factor, the court deemed it “crucial” that the minor’s caregiver understand how to appropriately administer medication.
Later in the hearing, the court described petitioner’s progress as “moderate.”
The court noted that the minor’s doctor had indicated the minor was doing better because of the amount of support she was receiving and concluded that “the risk really is a result of the totality of the circumstances.” Consequently, the court terminated reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.
DISCUSSION
Petitioner suggests the juvenile court’s finding that it would be detrimental to return the minor to his care was based on conjecture and speculation, rather than substantial evidence. We agree that substantial evidence does not support the court’s finding.
At the 18-month 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).)
Compliance with the reunification plan is relevant but not determinative of whether a child should be returned to parental custody. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704; In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) “[T]he court must also consider progress the parent has made towards eliminating the conditions leading to the [child’s] placement out of home.” (In re Dustin R., supra, at pp. 1141-1142.) Ultimately, “the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) The juvenile court’s finding in this regard is subject to review for substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) In conducting our review, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court’s order was proper based on the preponderance of the evidence. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)
Our review of the record reveals a dearth of evidence indicating the minor would be at substantial risk of detriment in petitioner’s care. Throughout the dependency proceedings, petitioner was cooperative with the service providers that had been assigned to assist him in learning to care for the minor, and the reports from those providers and the visit supervisors were uniformly positive regarding his commitment to her care. Visitation had progressed to unsupervised, multi-day visits, and the minor reportedly appeared happy on returning from such visits.
Moreover, the minor’s medical condition had improved since dependency proceedings were initiated. According to the minor’s pediatrician, she was growing and gaining weight, and her last exam had been “normal” other than the shape of her head. In addition, her respiratory and asthma problems had decreased during the preceding six months and her ear infections were being controlled with medication. The minor’s pediatrician anticipated that her asthma eventually would not be a problem. He acknowledged that his concerns regarding petitioner’s ability to care for the minor had decreased since the preceding review hearing and that he could not say “to a reasonable medical certainty” that petitioner was not capable of caring for the minor.
We are unpersuaded that the factors listed by the juvenile court, considered separately or together, support its finding that return of the minor to petitioner would create a substantial risk of detriment. The first factor cited by the court was petitioner’s plan to move several hours away from the foster parent, “which would essentially eliminate the one consistent caregiver from [the minor’s] life.” But while it is hoped that foster relationships will be nurturing and beneficial, this cannot be the basis for depriving a parent of custody of his child in a dependency proceeding in the absence of evidence that severing the foster relationship would cause the child “serious, long-term emotional damage.” (In re Jasmon O. (1994) 8 Cal.4th 398, 418.) No such evidence was presented here.
The juvenile court also relied on the fact that petitioner did not have a driver’s license, which rendered him dependent on public transportation, walking, or friends and family to get around. But it is not a prerequisite of capable parenting that an individual have a driver’s license, even if the child being parented is medically fragile. Petitioner had demonstrated his willingness to make alternate transportation arrangements. He testified that he planned to utilize public transportation or rely on his family to take the minor to medical appointments, and to call for an ambulance in the event of a medical emergency. There is no evidence that he failed to obtain necessary medical care for the minor or missed appointments when she was in his care as a result of transportation problems. Absent some evidence that the minor would be placed at substantial risk because petitioner could not drive, this factor (which in petitioner’s case was a product of his economic status) was not an appropriate consideration in determining whether the minor could be safely returned home.
In this regard, the juvenile court pointed to the fact that petitioner took the minor out in a stroller and, according to the minor’s pediatrician, exposure to the cold could be a problem for the minor. The testimony of the minor’s doctor was that being out in the cold could affect a skin condition the minor had. But it had been noted by the foster care agency that petitioner took appropriate precautions in dressing the minor and providing other protection for her against inclement weather. Moreover, even if petitioner had not taken appropriate steps to protect the minor from the cold, there was no evidence that a flare-up of the minor’s skin condition would pose a substantial risk of detriment to her.
Similarly, the court stated that the 18-mile distance between petitioner and the paternal grandparents “would be very difficult for [petitioner] without a driver’s license.” However, it was petitioner’s intent to live with the paternal grandparents initially. In addition, the paternal grandmother had expressed her willingness to assist in the minor’s care, and there is no reason to believe this would not include driving to petitioner’s residence if necessary for this purpose. Finally, there was no evidence regarding the availability of public transportation between the two locations. As petitioner did not have the burden of proof at these proceedings, the lack of evidence in this regard cannot be a basis for refusing to return the minor to his care.
There is no evidentiary support for the court’s remaining concerns regarding petitioner’s transportation issues. These included the court’s speculation that petitioner would walk the minor in her stroller “along traffic,” exposing her to “automobile exhaust,” and that if petitioner used public transportation, the minor would be exposed to “whatever contagious issues people on buses have.” “‘While substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics omitted.) There was simply no evidence that taking the minor in a stroller or on a bus posed the risks identified by the court.
The juvenile court also relied on petitioner’s “difficulties with hygiene” in refusing to return the minor to his custody. We agree with petitioner that there is insufficient evidence to support the contention that petitioner’s hygiene posed a substantial risk of detriment to the minor. There was evidence from the foster mother that, on occasion, the minor returned from visits with dirty hands and clothes. At the review hearing, the only testimony on the subject was from the social worker, who testified that the minor “seems to be clean,” and the minor’s pediatrician, who expressed skepticism that petitioner’s lack of personal hygiene would be “terribly harmful [to the minor] as long as she is kept clean herself.” While the pediatrician’s statement implies there could be some harm to the minor if she were not kept clean, the nature of the harm was not identified, rendering it impossible to assess whether it would constitute a substantial risk to the minor. Based on this evidence, it would be sheer speculation to conclude that the minor would be at substantial risk of detriment if petitioner did not keep her hands and clothing clean at all times.
For similar reasons, we agree that petitioner’s difficulty in getting the minor to eat fruits and vegetables was not a basis for refusing to return her to his care. There was no evidence that the minor’s health problems could be exacerbated by this dietary deficit. Furthermore, the social worker planned to have petitioner work with a dietician to assist him in this regard, and petitioner had demonstrated his ability to benefit from working with service providers in the past.
The last concern expressed by the juvenile court was petitioner’s inability to describe the frequency with which the minor’s medication was to be administered. It bears mentioning that the minor’s doctor deemed the risk from administering too much Pulmicort to be “extremely minimal.” Nonetheless, we appreciate the potential risk of not administering medication appropriately. However, this issue was not dealt with as part of the services offered to petitioner and easily could be addressed as part of family maintenance services. We also note that the minor’s recent healthy exams suggest the possibility that petitioner had been administering her medications appropriately but was not able to remember the dosages at the time of his testimony.
The juvenile court found the risk to the minor to be a product of the totality of the circumstances it enumerated. Our review of those circumstances uncovers none that are sufficient to deny petitioner the right to raise his own child, and we reject the notion that when assessing whether there is a substantial risk of detriment, the whole can be greater than the sum of its parts. Petitioner need not prove he is a perfect parent to be entitled to have the minor returned to his care.
We are loath to substitute our view of the correct findings for those of a juvenile court that was justifiably and commendably concerned with the health needs of a medically fragile child. Nonetheless, “‘If the word “substantial” means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with “any” evidence. It must be reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’ [Citations.]” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.) In the absence of substantial evidence that returning the minor to petitioner’s care would pose a substantial risk of detriment to her physical or emotional well-being, she must be returned to him. We conclude that this is the case here.
DISPOSITION
Let a peremptory writ of mandate issue, directing the juvenile court to vacate its orders terminating petitioner’s reunification services and scheduling a section 366.26 hearing and, depending upon the circumstances existing on remand, to enter a new order directing the Department to return the minor to petitioner’s custody under such conditions as the court deems reasonable.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.