Opinion
A170432
07-17-2024
Noel L., Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. Nos. 22JD0187, 21JD0335)
GOLDMAN, J.
Noel L. (Father) challenges the San Mateo County juvenile court's order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26 to select and implement a permanent plan for his two sons, N.F. and D.T. He contends that there is insufficient evidence to support the court's finding that returning the children to his custody would be detrimental to their safety or emotional well-being. We disagree and therefore deny Father's petition for extraordinary relief.
All undesignated statutory references are to the Welfare and Institutions Code.
The children's mother was involved in the dependency proceedings as discussed below but is not a party to the present petition challenging the setting of the section 366.26 hearing.
Background
On September 30, 2021, the San Mateo County Human Services Agency (Agency) filed a petition alleging that N.F., who was then almost two years old, came within the meaning of section 300, subdivision (b)(1) based on his parents' substance abuse and domestic violence. At the time of the petition, the Agency reported that Father had sole custody of the child as a result of Mother's longstanding substance abuse. The disposition report explained that Mother had lost custody of her two older children, now teenagers, to their father as a result of her struggles with substance abuse, and that both she and N.F. had tested positive for methamphetamine at the time of N.F.'s birth. The petition was filed after the Agency received a report that Father was observed smoking methamphetamine with the child present. When law enforcement conducted a welfare check, the child was found unattended in his crib and Father's whereabouts were unknown. N.F. was detained and placed in the care of his maternal grandmother.
On January 19, 2022, after amendment of the petition, the court sustained allegations that N.F. was at substantial risk of harm "due to the father's [substance] use, which has resulted in lack of adequate supervision and the child's exposure to drugs[¶] . . . mother and father's failure to protect the child from witnessing their verbal and physical altercations[ . . . ¶ and] . . . mother's ongoing substance abuse, which has resulted in her losing custody of [N.F.], who tested positive for amphetamines at the time of his birth." The court continued N.F.'s out-of-home placement with his grandmother and ordered reunification services and bimonthly supervised visitation for both parents.
On May 25, 2022, the Agency filed a petition alleging that one-week-old D.T. came within the meaning of section 300, subdivision (b)(1) as a result of his testing positive for methamphetamine at birth, and section 300, subdivision (j) as a result of the dependency proceedings involving N.F. D.T. was detained and, when released from the hospital, was placed with N.F. in the care of his maternal grandmother.
On December 5, 2022, after the petition was amended, the court sustained allegations that D.T. "is at substantial risk of suffering serious physical harm or illness as result of the mother's substance use and/or inability to provide adequate care for him" and due to the proceedings involving his brother. The court continued his out-of-home placement with his grandmother and ordered reunification services and supervised visitation three times a week for both parents.
Prior to the entry of the dispositional order in D.T.'s case, Father struggled briefly with his engagement with services for N.F. At the review hearing conducted in October 2022, the court terminated Father's services with N.F. based on his failure to make progress on his reunification plan. At that time, Father had been serving 45 days in county jail as a result of a probation violation. By December 2022, however, Father had been released from jail and had improved his participation in services. In April 2023, the court reinstated Father's services with N.F. for an additional six months.
On May 18, 2023, at the eighteen-month review hearing for N.F., the court terminated Mother's services but continued Father's services. Similarly, on September 6, 2023, at a combined six- and twelve-month review hearing for D.T., Mother's services were terminated but Father's services were continued.
In a status review report for N.F. filed on October 6, 2023, the Agency reported that Father was engaged in all services and had progressed to having extended overnight visits with N.F. Father had tested negative on 19 out of 25 drug tests, but had missed several tests and had one "presumptively positive" test. Nonetheless, the Agency opined that Father was on track to reunify with both children soon. The agency reported that Mother was homeless and had not tested for drugs since her services were terminated. On October 20, the court granted Father extended overnight visits with D.T. as well. A joint review hearing was set for the children on November 16, 2023.
On November 3, however, the Agency submitted a report recommending termination of Father's reunification services and asking that a section 366.26 hearing be set. The Agency reported, "On November 1, 2023, the father was reminded that the mother's visits with the children are supervised by the Agency or the maternal grandmother. He acknowledged this and stated he had not had any contact with her. Yet, on November 2, 2023, the father contacted the maternal grandmother stating that [N.F.] was in the care of the mother, in his home, because he had to take [D.T.] to the hospital due to his asthma. Law enforcement conducted a welfare check and located [N.F.] in the mother's care." The report expresses the social worker's "concern[] that the father has been allowing unsupervised contacts between the children and the mother during his overnights. This is of significant concern because the parents have a history of domestic violence and the mother has not made substantial progress in Court ordered services to address her substance abuse and mental health issues. Services are terminated to the mother and she has not made contact with the Agency. Just last month, she advised the maternal grandmother that she would hurt herself and the children if the children were not returned to her." The report concludes, "The father has now received eighteen months of reunification services and is not demonstrating protective capacity. He states that he left [N.F.] in the care of the mother because it was an emergency. However, he also reports that there was another safe adult in the home, the paternal grandfather. The Agency is worried that the father is not being honest, has not truly learned from this experience and will subject the children to the same pattern of behavior that led to their Dependency, placing them at risk." The extended visit was terminated and the children were returned to their grandmother's home. At the November 16th hearing, Father's overnight visits were temporarily suspended and the court ordered supervised visitation four days a week. The review hearing was continued several times and several addendum reports were filed before it was ultimately conducted in March 2024.
The Agency filed an addendum report on January 25, 2024. The report provides additional details regarding the social worker's meeting with Father on November 1, including that when Father was "reminded that the children [we]re not to have unsupervised contacts with the mother and that her visits are supervised by the maternal grandmother or the Agency," Father responded," 'I know. I know. I haven't had contact with her.'" At the same meeting, when the grandmother expressed concerns about Mother's mental health, Father "laughed and stated, 'Are you saying she's crazy?'" The social worker also reported, "On January 23, 2024, the undersigned spoke to the children's maternal grandmother/caregiver who expressed worry about the children returning to the care of either parent. She reported that the mother is still using drugs and living between the father's home and the streets.... The caregiver reported that the father contacted her few weeks ago after he had a physical altercation with the mother and stated he was going to kick her out again." Finally, the Agency reported, "On December 20, 2023, the father resumed unsupervised visits. The father was reminded to be on time and that the mother was not permitted to participate in his time with the children. The father agreed. [¶] After twelve unsupervised visits, the father progressed to overnights. His first overnight was from January 13, 2024 to January 18, 2024. However, overnights were paused after the children were returned to the caregiver with injuries. The father has resumed supervised visits in the maternal grandmother's home pending today's Hearing."
On January 26, 2024, the Agency submitted another addendum report relating the following incident: "A review of the Agency's records indicates that on December 9, 202[3], two Family Care Workers conducted a joint unannounced visit to the father's home as the undersigned had forgotten to cancel this service. The Family Care Workers arrived, the paternal grandfather answered the door and stated the father and children were not home. As the Family Care Workers left the home, one noticed someone peeking out of a curtain from the father's room. In an abundance of caution, the Family Care Workers returned to the home and asked the paternal grandfather if he was sure the father and children were not home. The paternal grandfather stated that as far as he knew, no one was home. He granted the Family Care Workers permission to do a walk-through of the home. The Family Care Workers knocked on the bedroom door and observed the television on and a lit cell phone on the bed. The Family Care Workers asked for whoever was in the bedroom to present themselves. The undersigned heard breathing and noticed the blanket lightly rise. One of the Family Care Workers called out to the mother stating, '. . . If it's you please come out as you know you aren't supposed to be here.' The mother responded, 'What do you want? I'm sick! Where do you want me to go? You would rather me be in the cold or dead right?' The Family Care Worker asked the mother to leave the residence. The mother replied, 'Yeah, huh . . . you would rather me be dead! I can be here if my children aren't here. They aren't here and you know that!' The mother eventually left on her bicycle. The paternal grandfather stated that the mother sometimes jumps through the bedroom window and he had no idea she was there."
In a report filed on January 29, 2024, the Agency reported that on October 21, 2023, while Father was having an overnight visit with the children, the San Mateo County Sheriff's Department received a 911 call from Father's sister reporting that Mother was at Father's home and had threatened to stab her, her boyfriend, and Father. A heavily redacted copy of the police call report was attached to the social worker's report.
At the review hearing in March, the social worker testified about the information in the reports. She clarified that, while the children were not in the house on December 9 when Mother was discovered in Father's bedroom, they were on an unsupervised visit with Father at the time. She also explained that Father was present at the meeting on November 1 when the grandmother reported the threats that Mother had made regarding harming the children. The social worker testified that she and Father discussed mother's mental health and that she told Father that "it was very important that the mother had supervised visits; and that if she got in contact with him, to please call the Agency and that the children were not to be left alone with the [mother]-that the mother was not to be left alone with the children because of her mental health issues."
On May 7, 2024, after receiving written briefs from the parties and having conducted a final hearing, the court terminated Father's reunification services and set a section 366.26 hearing. The court found, among other things, that the return of the children to Father's care would create a substantial risk of detriment to their safety, protection or physical and emotional well-being. The court explained that it considered Father's lack of "protective capacity as it relates to the mother's presence" to be a "significant threat . . . to the children's physical safety [and] emotional well-being." The court noted that Mother's presence in the home in October when she threatened to stab Father "corroborates" the grandmother's statements that Mother had threatened to harm herself as well as her children if they are not returned to her. The court added that on November 1, the social worker "emphasize[d] the importance of children not being, you know, left unsupervised with the mother. And the very next day, that's the decision that the father makes is to leave a child in the care of the mother." The court observed that Father's laughter and comments at the November 1 hearing reflect "father's lack of insight into the dangers posed by the mother's presence . . . in terms of the safety risks involved there." As a result, the court concluded that it "would have serious concerns returning [the children] to the father's care at this time."
Discussion
"Dependency proceedings span up to four stages: jurisdiction, disposition, reunification, and permanency." (Michael G. v. Superior Ct. (2023) 14 Cal.5th 609, 624 (Michael G.).) This case concerns the reunification stage, during which "the court ordinarily must order child welfare services designed to facilitate the reunification of the family. [Citations.] Such services may, depending on the case, include evaluations and assessments, counseling, parent education, substance abuse treatment and testing, and other forms of assistance. '" Reunification services,"' we have explained,' "implement 'the law's strong preference for maintaining the family relationships if at all possible.'"' [Citation.] This is because 'services enable [parents] to demonstrate parental fitness and so regain custody of their dependent children.'" (Ibid., footnote omitted.)
"During the reunification stage, the juvenile court must hold periodic review hearings to evaluate the status of reunification efforts and appropriate next steps. [Citation.] . . . At each review hearing, a court evaluates, among other things, the adequacy of the reunification services offered or provided and the extent of the parent's progress. If, at the six- or 12-month status review hearing, the court finds that there is a substantial probability the child may be returned to her parent within six months, or that reasonable services were not provided to the parent, the court extends reunification services for an additional six months rather than proceed to the final stage of dependency proceedings, permanency planning." (Michael G., supra, 14 Cal.5th at p. 625.) At the 18-month review hearing, the court must return the children to their parent's custody unless it finds by a preponderance of the evidence that doing so would create a substantial risk of detriment to the children's safety, protection, or physical or emotional wellbeing. (§ 366.22, subd. (a).) If the court does not return the children to their parent's custody, it must, absent extraordinary circumstances, terminate reunification services and order a permanency planning hearing under section 366.26 to determine whether adoption, legal guardianship, or longterm foster care is the most appropriate permanent plan for the children. (Michael G., at pp. 627-628.)
We review a juvenile court's detriment finding for substantial evidence. (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864.) "Under that standard we inquire whether the evidence, contradicted or uncontradicted, supports the court's determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court." (Id. at p. 865.)
As a threshold matter, we note that by May 2024, N.F. had been in out-of-home care for 32 months and D.T. had been in out-of-home care for nearly 24 months, and Father does not dispute that the Agency provided him with reasonable services throughout the children's reunification periods. Rather, Father argues that there is no substantial evidence to support the court's finding that returning the children to his custody would be detrimental to their safety or emotional well-being.
The juvenile court concluded that there would be a substantial risk of detriment if the children were returned to Father's physical custody because of his inability to protect the children from their mother. Substantial evidence supports the court's finding. At the meeting with the social worker on November 1, Father claimed that he had not had any recent contact with Mother and that he understood that she should not be left unsupervised with the children. As the trial court noted, while the Agency initially relied on Father's assertions that he had not had contact with Mother, information subsequently received, including the November 2 incident and the October 23 police report, caused the Agency "to question their understanding of the mother's contact or access to the children." Father's claim that he understood the threat Mother posed to the child's safety was called into question by his conduct on November 2, when Father left N.F. unsupervised in Mother's care despite having been personally threatened by Mother just a week before and, the day before, having been warned that Mother had made threats to harm her children. The trial court noted that Father's laughter and flippant comment in response to being informed of those threats demonstrated Father's lack of insight into the dangers posed by the children's unsupervised exposure to Mother. Mother's presence at the home on December 9, as well as the grandmother's report on January 23 that Father had contacted her a "few weeks ago after he had physical altercation with the mother and stated he was going to kick her out again" (italics added) both suggest that Father failed to understand or was willing to ignore the risks to the children posed by Mother's presence.
Father's argument that he has ameliorated all of the original conditions that led to the children's removal is not persuasive. The court ordered that visitation be supervised by the grandmother or the Agency evidently because of the ongoing risk of domestic violence between Mother and Father. While Father made substantial progress addressing certain elements of his case plan, by continuing to allow the children to have contact with Mother in his home he potentially exposed them to exactly the type of violence that led to the dependency proceedings. These concerns are illustrated best by the October incident during which the police were called to Father's home for a domestic violence incident. While the heavily redacted police report does not mention the children, the Agency reported that the children were on an overnight visit with Father that day. Accordingly, substantial evidence supports the court's finding that the children would face a substantial risk of detriment to their physical safety if returned to Father's custody.
Finally, Father contends that any concerns regarding continued contact with Mother should have been addressed by returning the children to his custody with the provision of family maintenance services, rather than the termination of reunification services and the setting of a section 366.26 hearing. He argues that such an order would have achieved the legislative goal of family preservation and, at the same time, ameliorated the court's concern for the children's safety and well-being. Father relies on Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 312-313, 316, in which the court held that the juvenile court, where appropriate, has discretion at the 18-month review hearing to order family maintenance services to extend the court's supervision and ensure the child's safety when returning a child to parental custody. (Id. at p. 316.) Although this option was not raised by the parties at the review hearing, we presume the court was aware of its discretion in this regard. (In re Julian R. (2009) 47 Cal.4th 487, 499 [a"' "trial court is presumed to have been aware of and followed the applicable law."' "]; Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 333 [we "must presume the trial court was aware of and understood the scope of its authority and discretion under the applicable law"].) Nothing in the record suggests that the court abused its discretion by not taking this path. On the contrary, the court's observations about Father's lack of candor and insight regarding his continued contacts with Mother provide a reasonable basis on which to conclude that family maintenance services would not be effective in protecting the children.
Disposition
The petition for an extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i) &8.490(b).)
WE CONCUR: STREETER, Acting P. J., DOUGLAS, J. [*]
[*] Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.