Opinion
A158980
01-27-2020
P.P., Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT et al., Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5534DEP)
P.P. (Father) petitions this court for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). He contends that substantial evidence does not support a finding that return of his child to him would be detrimental and that he was not offered reasonable reunification services. We shall grant the petition.
All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Jurisdiction and Disposition
A petition pursuant to section 300 was filed on behalf of then-16-month-old R.P. (Minor) on June 12, 2018, alleging Father and Minor's mother (Mother) used methamphetamine regularly and were unable to care for Minor safely. On June 10, 2018, their home had been found in a filthy condition, with drug paraphernalia (including bongs and open syringes) within easy reach of Minor. Minor was not fed, he was at least three pounds underweight, he had not had his diaper changed for a significant period of time, and he had severe diaper rash.
Mother is not a party to this writ proceeding, and we will discuss facts relating to her only to the extent they are pertinent to the issues before us.
According to a jurisdiction/disposition report prepared by the Sonoma County Human Services Department (the Department), Father acknowledged that he used methamphetamine. He went to jail for a probation violation when Minor was four months old and was subsequently sober for six months. He had relapsed " 'a few times.' " He expressed his willingness to engage in services and seek sobriety. Minor had attended regular pediatric medical appointments, but his weight had fallen by three pounds in the three weeks before he was taken into custody.
The juvenile court declared Minor a dependent, removed him from Mother and Father's custody, and ordered reunification services.
II. Six-Month Review
Before the six-month review hearing scheduled for January 9, 2019, the Department recommended that reunification services be terminated and a .26 hearing be set. Father had been arrested on September 4, 2018, after a report that he physically assaulted Mother. On September 26, 2018, he was again arrested when he allegedly assaulted a friend with a baseball bat and vandalized the friend's car. Father was incarcerated, awaiting sentencing, no longer owned the motor home in which the family had been living, and was unemployed.
The contested six-month hearing took place on March 11, 2019. Although Father's circumstances at the time were less than promising, the juvenile court declined the Department's recommendation and extended services to Father for an additional six months, even as it terminated services to Mother.
III. 12-Month Review
The Department's Initial Report—July 2019
The 12-month review hearing was originally set for July 17, 2019. The Department again recommended terminating reunification services and setting a .26 hearing. Father had been in a residential treatment program since February 7, 2019, and was scheduled to complete it on August 5, 2019. He was participating in all services at the program and had made clean and sober friends there. He was working for a plumbing company.
Father had been referred to in-home parent education when the dependency began, but had not completed it due to his incarceration and residential treatment. He appeared to have continued his relationship with Mother during the reporting period, although Mother had not followed through with drug testing and visitation monitors had suspected her of being under the influence during her visits with Minor. She had been seen outside the Department or in the parking lot on days Father had supervised visits with Minor, and staff members had seen them leaving together after his visits. Father had suggested that Mother could help with child care if Minor were returned to his care and if Mother was clean and sober.
Father was receiving supervised visitation with Minor twice a week, and the visits went well. He came to all visits, spent time playing with Minor, and gave him toys. Visits remained supervised due to a concern that Father would allow unauthorized contact with Mother. The Department believed Father would be unable to reunify by the 18-month date, December 10, 2019.
The Department's Addendum Report—October 21, 2019
After being continued several times, the contested 12-month review hearing took place on November 15, 2019. On October 21, 2019, the Department submitted an addendum report.
Father had completed the residential treatment program and had moved into a family living unit provided by a shelter network. He had changed jobs, and had been working for two months at a moving company with a clean and sober working environment. His employer said Father was a good worker, and the job accommodated parents caring for children.
At the time of the report, Father was receiving "lightly supervised" visits three times a week. Lightly supervised visits were to have started earlier, but were delayed due to an incident at a supervised visit on August 15: Father had told the visit monitor about a friend who made " 'THC infused gummies,' " and said he was helping his friend move from a garage to a shop. Shortly afterward, Father took out a bag of gummies and commented that it was a five-pound bag. He later offered Minor a gummy; when the monitor asked if those were the THC gummies he had talked about, Father said, " 'yes.' " The monitor asked if Father planned to give Minor one, and Father said, " 'yea[,] just a little piece.' " The monitor asked if Father thought it was a good idea, and Father responded, " 'should I not?' " The monitor told him no, and Father put the gummy in his own mouth. When the social worker was informed of the incident, she called Father, who chuckled and said "he wouldn't do that and can't believe the monitor took him seriously." Father's drug test on August 20, 2019 was free of any drugs or alcohol.
Father was attending a father's group and a parenting class every week. He was attending three Narcotics Anonymous (NA) meetings a week. He had received a referral for individual counseling but at the time of the report was about to make his first appointment.
The Department opined that, despite Father's progress, he was not yet ready to have Minor in his care. The report expressed concern that he showed poor judgment in befriending someone producing THC products and in either trying to give some to Minor or joking about it. The report also stated that Father had only recently moved to housing where he could have Minor with him, and the social worker did not believe Father had yet shown he could maintain his sobriety and provide safety and stability for Minor. He had delayed eight months from the beginning of the dependency to begin addressing his substance abuse, and only then as a result of the criminal proceedings against him. Moreover, the Department expressed concern that Father had not made a plan for how he would keep Minor safe from his relationship with Mother.
Social Worker's Testimony—November 15, 2019
The social worker responsible for the case testified at the November 15, 2019 hearing that Father's visits with Minor were positive. He had been visiting with Minor and had engaged in all the other services in his case plan. His drug tests had uniformly been clean. The social worker had visited the home Father had lived in since September. He had a bed, a dresser, and other items for Minor.
Father's visits had progressed from fully supervised to lightly supervised as of September 30, 2019 on the recommendation of the visitation monitor, although the change had been delayed as a result of the incident with gummies while the social worker had Father tested for drugs, got a statement from the monitor, and spoke to her own supervisor. At lightly supervised visits, the monitor checked in at the beginning of the visit, midway through the visit, and at the end of the visit, but otherwise the parent was alone with the child. The lightly supervised visits had been going well. Father was bringing appropriate snacks, meals, and drinks for Minor. But Father had not yet progressed to unsupervised visits, and by the 17-month point in a dependency, the social worker would have expected visits to have progressed to unsupervised to allow the parent a trial home visit by the end of the reunification process.
The social worker had spoken multiple times with Father about his relationship with Mother. In March and April 2019, Father was still having an on-and-off relationship with Mother, and he had talked about having her care for Minor while he was at work. In July and August, he told the social worker he had cut all ties to Mother, changed his phone number, and cut off his social media accounts so he would have no contact with her. The social worker was concerned because Mother continued to use drugs, and she had communicated with Father in the three months leading up to the hearing, asking to visit with Minor when he was returned to Father. The social worker believed Father had lied to her in the past about his relationship with Mother; when she confronted him with reports that Mother had been seen at the Department on the days he visited Minor, Father told the social worker he was not having contact with Mother and was not in a relationship with her. However, Father's therapist and his "parent mentor" had recently told the social worker Father had cut off contact with Mother, and the social worker was "confident" of that. She was not aware of any recent contact between Father and Mother. At a recent meeting, Father had said he had "a whole process" for what to do when Mother contacted him.
Asked what risk there would be in returning Minor to Father, the social worker replied, "The child has been away from [F]ather for a long period of time. I don't see any risk. . . . The concern would be more the time that the child's been away from the father. But risk, I don't have one." She expressed concern about Father's judgment as a result of the incident with the gummies, and about the fact that he sought treatment only after he was threatened with possible jail time, rather than when given the opportunity earlier by social workers. She did not believe that the three months Father had lived in the community after his residential treatment program were adequate to show he could be stable and care for Minor and himself.
Father's Testimony
Father testified at the hearing. As to the gummies, he explained that he worked for a moving company, and during one of the moves, a client told him the client made THC-infused gummies. Father mentioned that he liked candy, and the client gave him an unopened bag of gummies. Before taking them, Father ensured the package of candy was new and the gummies had not been infused with THC. He mentioned the incident to the monitor at his visit with Minor, while making "small talk" about his day at work. When he offered a gummy to Minor, he did not realize the monitor thought it might be infused with THC.
Father testified to the positive nature of his visits with Minor; Minor was usually happy and excited to see him, and would not want to leave at the end of the visit.
Father stated he was no longer in a relationship with Mother. She visited him a few times while he was at the treatment program, but he ended the relationship because she was still using drugs. He had some contact with her after that, trying to help her overcome her drug problem, but he had recently blocked her on social media and did not know her whereabouts or current phone number.
Father was living in a "family house" for families in the reunification process, run by an organization that works with clients to find more permanent housing. Minor would be able to live there if returned to Father's care. He was working full-time, from 8:00 till 4:00, and planned to find a day care for Minor. He had a list of available day-care providers and had contacted a couple of them. His job was flexible enough to allow him to care for Minor if the child were sick.
Father had recently begun participating in therapy and wanted to continue. He was attending parenting classes and a fathers' support group. He was currently on probation, and would be until August 2022. To maintain his sobriety, he was attending NA or AA meetings two or three times a week, staying around sober people, and working at a clean and sober company. He had been free of drugs for a year, and he was being tested for drugs regularly, both through the Department and through his treatment program.
Father's first use of drugs, specifically methamphetamine, was in approximately 2016. In the ensuing years, he had relapsed at least twice; his longest previous period of sobriety before relapse had been six months. Father acknowledged that he was arrested three additional times between June 10, 2018, when Minor was removed, and November 8, 2018. On that date, he was taken into custody and had been sober ever since. He was released to the residential treatment program, where he remained until August 5, 2019. He accepted treatment when he was incarcerated and "the likelihood of not getting [Minor] back was weighing heavy on [his] mind."
Regarding Mother, Father's plan was that if she contacted him about visiting Minor, he would not allow it unless she went through a treatment program, attended meetings regularly, tested clean, and began with supervised visits. He did not think that she should visit Minor in her current state. When asked about Mother's presence after visits with Minor, Father said he did not know she was present until he left the visit and saw her on two occasions. He spoke with her but denied going anywhere with her or accepting rides from her.
The Ruling at the 12-Month Hearing
The juvenile court found that return of Minor to Father's care would create a substantial risk of detriment and that reasonable services had been provided, terminated reunification services, and set a .26 hearing. The "biggest problem" it identified was Father's delay in complying with his reunification plan, specifically continuing his drug use and criminal behavior for several months after Minor was removed. The court also expressed concern that Father had relapsed in the past. The court concluded Father was not yet ready to have Minor in his care.
DISCUSSION
Father contends the evidence does not support the juvenile court's finding that returning Minor to his care would create a substantial risk of detriment.
At the 12-month review hearing, the juvenile court must return a child to the parents unless it finds return would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) The Department has the burden of establishing detriment, and there is a presumption that the child will be returned to the parents. (Ibid.; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789 (David B.).)
In considering whether return would be detrimental, the court considers whether the parent participated regularly in any treatment program in the reunification plan, the parent's efforts or progress, and the extent to which the parent availed himself or herself of services. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) The standard for detriment has been construed be "a fairly high one," which "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." (David B., supra, 123 Cal.App.4th at p. 789.) We review the juvenile court's finding of detriment for substantial evidence. (In re B.S. (2012) 209 Cal.App.4th 246, 252.)
Substantial evidence does not support the detriment finding here. The basis of the dependency was Father and Mother's methamphetamine use. Although Father delayed treatment for several months after Minor was removed from his care, the record shows that once he entered the residential treatment program, his participation in treatment and dedication to his sobriety were exemplary. He participated in all services at the residential program. At the time of the 12-month hearing, Father had been living in the community for more than three months and his drug tests had all been clean. He was employed full-time in a clean and sober work environment, his employer understood his situation and was able to accommodate the needs of a parent raising a child, and he had obtained suitable housing. There was uncontradicted evidence that Father had been attending parenting classes, a fathers' support group, and therapy, and that he had begun seeking child care arrangements in anticipation of Minor's return. Father visited with Minor regularly; at the visits, he cared for Minor's needs and the visits went well.
We are struck by the fact that, when asked what risk a return to Father would entail, the social worker testified that she could identify none, although she expressed some concerns: Father's poor judgment in connection with the gummies, the fact that he did not enter treatment for eight months after the dependency began and then only when faced with jail time, and the fact that he had been out of the residential program only three months. In its ruling, the juvenile court cited Father's delay in complying with his reunification plan and his prior relapses. And the Department argues that, in addition, Father had not been forthcoming about his relationship with Mother, which continued through part of the reunification period.
We are not persuaded that any of these factors supports a finding that, at the time of the 12-month hearing, Father was unable to care for Minor safely. We recognize that Father did not begin treatment until well after the dependency began and then under duress, but the fact remains that he did begin treatment, completed it successfully, continued engaging in services after the residential program ended, and maintained his sobriety for more than three months in the community while securing full-time employment and suitable housing. Although he had not yet been granted unsupervised visits, the evidence is clear that he provided for Minor's needs appropriately during the visits he was allowed.
The sole exception to this last point, of course, is the incident with the gummies. But there is no evidence the gummies Father brought to the visit actually contained THC; Father ate some of them at the visit and he later tested negative for drugs and alcohol. In fact, the Department's counsel at the hearing acknowledged that Father believed the incident was "a joke"; she made no effort to argue that Father in fact offered his son THC-infused candy, arguing instead that the incident raised concerns about his judgment. But even a one-time lapse in judgment in joking about THC is not substantial evidence to support a finding that almost three months later, after continuing to engage in services and maintain his sobriety, Father could not safely care for his son. (See Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505 [parent's single failed drug test, "viewed in the context of this case" did not show substantial risk of detriment].)
We recognize that Father had been out of the residential program for just over three months at the time of the hearing, but that period was preceded by six successful months in the program. (See In re E.T. (2018) 31 Cal.App.5th 68, 78 [noting mother's accomplishment in remaining sober for more than nine months].) And it is worth noting that the Legislature has directed courts to consider whether children may safety be returned even to parents who are currently in a residential substance abuse treatment facility; the fact that a parent is enrolled in such a facility is not, for that sole reason, prima facie evidence of detriment. (§ 366.21, subd. (f)(1)(B).) Without minimizing the risk to Minor if Father were to relapse, we cannot say that the record contains substantial evidence that return to Father, who had been addressing his substance abuse problems successfully for more than nine months, would carry a substantial risk of detriment.
To support the finding of detriment, the Department also points to the fact that until a few months previously, Father remained in contact, and possibly in a relationship, with Mother, who was still using drugs. But there is no evidence that Father is currently in contact with Mother or intends to resume a relationship with her, and he has developed a plan to keep Minor safe if Mother seeks contact.
We recognize that Father made mistakes during the course of the dependency in delaying participation in substance abuse treatment and other services and apparently maintaining contact with Mother even while becoming sober himself. But "[w]e do not get ideal parents in the dependency system." (David B., supra, 123 Cal.App.4th at p. 789.) Rather, they are "more in need of help than most," and "[i]f we are lucky, they are parents who can learn to overcome the problems which landed their children in the system." (Ibid.) After a rough start, Father availed himself of resources to help him overcome his substance abuse and put his life on a more stable footing, and the record shows he has been remarkably successful in overcoming the problems that led to the dependency.
This case thus stands in contrast to Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, upon which the Department relies to argue that progress in a reunification plan is not dispositive as to whether it is safe to return a child to parental custody. Although the mother in Constance K. had completed her program and shared a bond with her children, there was evidence that there would be detriment if three of her children were returned to her: the mother had never been drug-free while having full-time custody of her children; all eight of her children had been either dependent children or adopted; two qualified mental health care professionals had opined the mother would be unable to cope with return of the three children; when the children were in her custody for even short periods of time, she allowed contact with their fathers, who were convicted felons and had long histories of failing drug tests; she did not set appropriate boundaries for the children; she could not control them during weekend visits; the children would be " 'hyper' " for days after visits; her residence was in disarray and she had failed to correct a hazard; and she had recently tested positive for morphine. (Id. at pp. 708-709.)
No such array of factors exists here. We recognize that Father had not yet received unsupervised or weekend visits with Minor. In light of his impressive progress in his case plan, it is difficult to discern why such visits were not offered once Father achieved appropriate housing and sobriety in the community and severed ties with Mother. Such visits would have been an important step toward reunifying with Minor before the 18-month point. The Department attributes its unwillingness to allow unsupervised visits to Father's questionable judgment in joking about THC-infused gummies at the visit on August 15, 2019, but we fail to understand how the Department could take six full weeks to "investigate" this minor incident nor why Father was not thereafter granted unsupervised visits. In any event, we need not decide whether the Department failed to offer reasonable reunification services because, as we have explained, there was no substantial evidence that, as of November 15, 2019, Father would be unable to care for Minor adequately if Minor were returned to his care.
Two final notes: First, more than two months have passed since the 12-month hearing, and we do not know what has happened in the meantime. If, as a result of changes in his circumstances during that time, Father can no longer provide a safe home for Minor, nothing we say is intended to prevent the Department from calling that to the juvenile court's attention through a motion under section 388 or other appropriate vehicle, and for the juvenile court to base its future rulings on the new information. Second, we do not imply that the juvenile court may not retain jurisdiction over Minor and provide family maintenance services; these services may be particularly important here, where Father has not yet had unsupervised overnight visits with Minor.
DISPOSITION
The petition is granted. Let a writ of mandate issue directing the juvenile court to (1) set aside its order terminating reunification services and setting a .26 hearing, and (2) issue new and different orders consistent with the views expressed in this opinion. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.