Opinion
A149965
02-02-2017
C.J., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD143238, JD143238A) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1), (3). The parties are aware of the factual and procedural background of this case, which is summarized in the response to writ petition, filed by the San Francisco Human Services Agency (Agency) on January 9, 2017.
C.J. (Father) petitions for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a hearing pursuant to Welfare and Institutions Code section 366.26. We shall deny the petition on the merits.
All statutory references are to the Welfare and Institutions Code.
We grant the Agency's motion to augment the record, filed January 9, 2017.
C.J., Jr., and J.J. (Minors), then six and four years old respectively, came under the jurisdiction of the juvenile court in October 2014 after the juvenile court sustained allegations, inter alia, that Father's unknown mental health status and lack of judgment placed Minors at risk of harm and that he had violated a court order prohibiting Minors' mother, Z.W. (Mother), from having contact with them. The primary safety concerns the Agency identified were Mother's untreated mental health problems and Father's failure to protect Minors from her. Minors were placed with Father, but were removed in January 2015 after reports of an incident in which Father arrived at Minors' school to pick them up, appearing confused and disoriented, admitted to paramedics he had been smoking crystal methamphetamine, and had a positive test for methamphetamine. Father was granted reunification services, which included drug testing. The juvenile court later ordered him to participate in a substance abuse treatment program.
Mother is not a party to this writ proceeding. According to the detention report, she lost custody of Minors in early 2014 due to serious mental health issues.
Father appealed from an order made at the 12-month hearing held on April 7, 2016. Concurrently with this opinion, we file an opinion affirming that order. (In re C.J., A148255.)
At the 18-month review hearing on October 24, 2014, the juvenile court found that return of Minors would create a substantial risk of detriment, terminated reunification services, and set the matter for a permanency hearing pursuant to section 366.26. Father contends this order is not supported by substantial evidence.
At an 18-month hearing, "[a]fter considering the admissible and relevant evidence, the 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 failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (§ 366.22, subd. (a)(1).) "In determining whether it would be detrimental to return the child at the 18-month review, the court must consider whether the parent participated regularly in any treatment program set forth by the plan, the 'efforts or progress' of the parent, and the 'extent' to which the parent 'cooperated and availed himself or herself of services provided.' [Citation.]" (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) We review the juvenile court's finding for substantial evidence. (In re B.S. (2012) 209 Cal.App.4th 246, 252.)
Father argues Minors can safely be returned to him. In support of this contention, he points out that he had been having unsupervised day visits with Minors for 10 months and that a therapist who supervised therapeutic visitation between Father and Minors testified that Father structured his time with Minors, had quality interactions with them, dealt with problematic behaviors, and never appeared to be under the influence of drugs during visits. The question before us, however, is whether substantial evidence supports the juvenile court's finding, not whether the juvenile court might have made another decision on the evidence before it. (See In re Heather B. (1992) 9 Cal.App.4th 535, 563.)
The evidence is sufficient here. Father was required to submit to random drug testing after the January 2015 incident. He failed to test for months at a time, missed many tests during the periods he was testing, and at least 10 of the tests between May 2015 and September 2016 were positive for methamphetamine. During a team meeting in August 2015, Father was agitated and not making sense, and when meeting with a social worker in November 2015, he appeared paranoid and angry, and engaged in "non-reality based conversations." One of Father's service providers expressed concern in December 2015 that he was abusing his medication and possibly using methamphetamines. The Agency reported in July 2016 that Father had left at least two voicemails in which his speech was slurred, and he did not make sense. In addition, at times, he would arbitrarily show up at Minors' school or after-school program despite having been told to let the social worker know in advance when he would be volunteering. The after-school staff had reported twice that Father had shown up randomly, acting strangely, and Minors' care provider reported that Father's appearance had deteriorated, and he was "not himself." Father had refused to engage in a substance abuse treatment program.
The court in Blanca P. v. Superior Court explained, "In deciding whether it would be detrimental to return a child, the easy cases are ones in which there is a clear failure by the parent to comply with material aspects of the service plan." (Blanca P., supra, 45 Cal.App.4th at p. 1748.) Thus, evidence that a parent "continued to test positive for illegal drug use, continued to move from place to place, failed to 'regularly' attend therapy, and failed to complete her parenting class" was "obviously enough to support a finding of detriment." (Ibid.) The evidence here is likewise ample to support a finding of detriment.
We are not persuaded otherwise by the cases Father cites for the proposition that a parent's substance abuse, standing alone, does not bring a minor within the juvenile court's jurisdiction. (In re David M. (2005) 134 Cal.App.4th 822, 830 [jurisdiction improper where there was no evidence mother's marijuana abuse would harm minors]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [use of drugs, without more, does not bring minor within dependency jurisdiction].) As In re Alexis E. (2009) 171 Cal.App.4th 438, 453, explains, the "more" that supports a finding that substance abuse poses a risk of harm to children may be found in the negative effects the substances have on a parent's demeanor toward the children and others. The juvenile court here could reasonably conclude that Father's failure to address his substance abuse posed a risk of harm to Minors.
DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The request for a stay of the February 23, 2017 hearing is denied. Our decision is final as to this court immediately. (Rule 8.490(b)(1).)
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.