Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 77459 & 77460
Richman, J.
In dependency proceedings involving his children, W.P. (father) seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26, subd. (l)) of orders setting for April 6, 2009, a permanency planning hearing for daughter C.P. and son E.P. Father asserts three claims: (1) a need to correct or clarify findings, (2) judicial misconduct in relying on facts not in evidence, and (3) insufficient evidence for failure-to-participate and reasonable-services findings. We deny his petition on the merits.
All unspecified section and rule references are to the Welfare and Institutions Code and the California Rules of Court.
Background
Earlier proceedings
The children were born in September 2004 (C.P.) and September 2006 (E.P.). They were nearly three and one years old when, in late August 2007, petitions filed for both children by the San Mateo County Human Services Agency (agency) alleged both parents’ failure to protect. (§ 300, subd. (b).) Each child was allegedly “found to be at risk of harm and neglect in the care of the father in that the home in which the child was residing was determined to be unfit and the father was found to be under the influence of cocaine; as a result, the father, who has a history of domestic violence, cocaine abuse, and incarcerations, was arrested and the children were left without a caregiver, as the mother was unavailable due to being incarcerated.” Further allegations against the mother were that she had been arrested days earlier for contact with father in violation of a restraining order and had shown poor judgment by carrying a gun in a child’s backpack.
The parents had been living in the South San Francisco home of the maternal grandmother, along with a maternal uncle and a boyfriend of the grandmother’s who had been convicted of molesting the mother (born January 1982) in her childhood. The mother had an extensive welfare history as a child, with mental evaluations showing major depression with psychotic features, and both parents were longtime drug abusers with criminal and domestic violence histories. The mother’s five-year history included gun possession and assaults, and father’s 15-year history included theft- and drug-related offenses. The mother also awaited resolution on a prior petition for leaving the infant child, E.P., unattended in a car in a Costco parking lot.
The current matter arose through an August 23, 2007, referral that the mother was jailed and that the children were home with father, a “meth addict” who was probably using while neglecting them. The grandmother and her boyfriend were in Canada at the time. Police did a welfare check and according to the report, found the home filthy, and father “still twitching,” shaky and hard to communicate with, from what he later confessed was cocaine use. Father was arrested, and the children were removed to shelter care.
Father claimed to have been clean and sober for years, but said he now used cocaine twice a week due to stress over problems in his years-long relationship with the mother. He said he had once participated in Walden House, a residential drug treatment program, as a condition of probation, but left that program after three months and went “on the run” for 14 months before he was apprehended; he ultimately served 14 months in San Quentin for violating probation on an underlying drug conviction.
Dependency was declared at a jurisdictional/dispositional hearing of October 4, 2007, at which the parents admitted the allegations. Father was declared the presumed father, and the children were placed out of home, eventually with a paternal half-sister (often identified as a stepsister). The grandmother’s home was not an option given that her boyfriend of 15 years was a registered sex offender.
The jurisdictional hearing was held on October 4, which statutorily was the date of removal from parental custody (former § 361.5, subd. (a) [the earlier of the jurisdictional hearing or 60 days from physical removal]).
Case plans of each parent required, among other things, general counseling, domestic violence and parenting education programs, a psychological evaluation, and substance abuse services. By the close of 2007, father had completed a parenting course (with a 50% understanding of most core concepts), but tested positive for cocaine and/or THC several times. He kept up successful visits but failed to show for a December appointment for a mental health assessment that was to precede dyad therapy with his daughter.
In early January 2008, Father was arrested on a warrant and remained jailed on a probation violation, for dirty drug tests, until July 16. He was directed by social worker Manuel Sedilla to the Choices Treatment Recovery program (Choices program), a drug treatment program in the county jail, but father did not go, saying he had been clean since his arrest and was handling it himself. Father stopped by one NA/AA meeting but did not participate.
The mother made scant progress on her case plan and, at a contested six-month review on May 6, 2008, had her reunification services terminated. On the unopposed request of the agency, we judicially notice the record in an appeal that mother filed in this court (In re C.P. et al. (A122002)), and thereafter dismissed her appeal (see In re Sade C. (1996) 13 Cal.4th 952, 994) after her appellate counsel filed a no-issues statement and mother herself filed nothing.
At the same review, the court (Judge Holm) concluded that reasonable services had not been provided for father, and ordered an additional six months despite the tender age of E.P., which could have marked the end of statutory services at that point (former § 361.5, subd. (a)(2)). The court was dissatisfied with services while father was jailed, particularly that his arrest had kept him from making a second appointment for a mental health evaluation, and that the agency had not arranged to have the evaluation done at the jail. The court also chided father for dismissing the Choices program as of no benefit to him: “[Y]ou made a big mistake not taking advantage of it because it’s a wonderful program.” As an additional plan requirement for the extended period, the court ordered that father “participate in the Choices program making a good faith effort to get into the program, apply when you get back to the jail . . . . I want to hear that you have made a good faith effort. [¶] I know the people there, and I can call upon them to come in here and testify if you don’t. So don’t scam me because I know better.”
Current review period
An in-jail psychological evaluation by clinical psychologist Robin Press revealed no serious disorder, but mild emotional distress, cocaine dependency, vulnerability to relapse upon release from custody, and a troubled relationship with the mother. Father had “inadequate psychological resources to cope” with the demands of external events and internal experiences. He was “overwhelmed by persistent difficulties in managing the demands in his life without sufficient coping skills.” This created “a state of chronic and substantial stimulus overload” that was “more ongoing than situational although situational factors are also increasing his current experience of stress.” Father had “some potential . . . to function as a competent parent” but needed to “participate in a structured outpatient drug treatment program” before he could be “considered safe.” He also needed to “demonstrate a capacity to remain clean and sober outside of a structured setting.”
The mother, who at the six-month hearing was pregnant (by someone other than father), gave birth to a boy in June and ultimately moved with the baby back in with the grandmother, having briefly lived in a separate apartment paid for by the grandmother. The baby’s father did not reside with the mother.
Father was released from jail on July 16, 2008, having attended four or five sessions of the Choices program and stopped, saying it was not “a good environment” and that he felt uncomfortable with other inmates in the program. He moved back in with the mother (and baby) at the grandmother’s house. Warned repeatedly by social worker Manuel Sedilla that the children could not be placed there, father said he did not plan to stay long. By early September, father reported plans to move in with “Sonny,” his friend and employer on remodeling jobs, who lived in Daly City.
The move came sooner than father expected: on September 9, the grandmother kicked him out of her house. He had come home drunk that night before and, after an argument with the mother, grew loud and belligerent. The grandmother recognized this as behavior when father drank and used drugs, and decided he could not stay. He refused her demand to leave, taunting her to call the police. She did, and officers escorted him out, releasing him outside to go on his way. He eventually went to live in a one-bedroom apartment with his friend/employer, and the friend’s girlfriend. He worked part-time jobs with the friend, and slept on a fold-out couch in his living room.
Meanwhile, social worker Sedilla had referred father to an outpatient treatment program, Sitike, and father enrolled in it, eventually attending twice weekly sessions from August 12 to November 19, 2008, and getting favorable evaluations (but never revealing his drunken episode and resulting explusion). At least nine random drug screens during that time were clean; two were diluted.
In a report first prepared for a 12-month review date in late September but updated twice before the actual hearing on December 15, 2008, Sedilla assessed the situation this way: “Throughout the [first] twelve months of Family Reunification Services, beginning on October 4, 2007, [father] failed to make substantive progress with his court-ordered services. [He] failed to participate in counseling services during the first six months of services as he did not attend the initial assessment with Partners for Safe and Healthy Children [sometimes (PSHC)] therapist David Levin [in December 2007]. Now in this second review period, [he] missed another assessment, scheduled with [PHSC] therapist Kristin Stent [for August 2008], which would have beg[u]n the process of the dyad therapy between [him] and [C.P.] This assessment was rescheduled . . . and [father] reported it took place on September 16, 2008. Despite [his] being cleared by Ms. Stent for participating in dyad therapy . . ., the implementation of these services has been greatly delayed . . . due to [father’s] two missed appointments and [his] incarceration from January 2, 2008, through July 15, 2008.
“[Father’s] motivation for completing a drug treatment program has been minimal to none from the initial removal of the children August 23, 2007, through August 12, 2008. At the onset of the court services . . . he had described himself as not in need of an outpatient treatment program as he was already testing clean for his probation officer. This was false . . . as [he] produced five positive tests for THC and two positive tests for cocaine during the time that he reported . . . he was clean. Follow his incarceration in January 2008, [he] continued to believe he did not need to participate in an outpatient treatment program, and chose not to enroll in the . . . Choices program.
“[At the May 6 review hearing, Judge Holm] ordered and verbally instructed [father] to enroll and work towards completing the Choices program during the remainder of his sentence through July 16, 2008. [Father] reported attending four sessions . . . before discontinuing his participation due to feeling that the other inmates participating in the program created a bad environment within the program. After release from jail [he] began to attend and participate in the Sitike outpatient drug counseling program since August 12, 2008. After ten and a half months of not making substantive progress, the recent drug screenings, and the outpatient treatment program compliance over the last three months, does not represent significant substantive progress with court-ordered services.”
The assessment further observed that father’s recent relapse into alcohol abuse led to his ejection from the maternal grandmother’s home in September and evinced “the same pattern” as a prior relapse into cocaine use in October and November 2007. Father had repeatedly attributed the prior relapse to stress and depression from his relationship with the mother and the prospect of separation from the children, and the latest relapse came after a breakup with the mother. Also, twice since his release from jail, in July and August, father submitted test results that the report author and toxicology lab felt, from extremely low creatinine levels, had been purposefully diluted.
The assessment continued: “[Father] has repeatedly acted in a way which is not in the best interest of the children. In this current review period [he] has also been observed to make inappropriate comments to [C.P.] which caused stress on [her]. During dyad therapy sessions, [he] has made comments to [her] about the struggles he and the mother have with their relationship. The therapist . . . had to ask [him] to no longer speak of issues between [the parents] during dyad therapy sessions with [C.P.] [Father] also had to be warned . . . not to make negative comments about the caretakers. In the most recent dyad therapy session, [father] did not follow directives given to him surrounding the greeting and goodbye of [C.P.] which were explained to him as important to follow in order to make the therapy sessions less emotional and traumatic for [the child]. [His] inability and/or unwillingness to follow simple directive[s] of the therapist demonstrates a lack of understanding in the best interest of his child.
A further concern was father’s dishonesty with service providers about his relapse. “[His] drug/alcohol treatment counselor, Jaime Hernandez, did not know anything about [his being] asked to leave the maternal grandmother’s home due to intoxication [until being told by the report writer]. [Father’s] dishonesty with his current treatment provider is consistent with the dishonesty exhibited during the time [he] spent in his parenting course in October through December 2007. During that time, [father had] twice tested positive for cocaine when he also reported to the parenting course instructors that he had learned the negative [e]ffects of his drug and alcohol addiction . . . on his family and was committed to remaining sober. This reoccurring dishonesty regarding [his] sobriety demonstrates his inability to successfully alleviate the drug and alcohol abuse which created the need for the Agency involvement.”
Sedilla testified at the hearing, confirming what was in his report but adding alarm, from joint visits and other circumstances, that father was back in a relationship with the mother and planning to have her care for the children if he regained custody.
Father testified, first about why he “voluntarily stopped” the Choice program after five full-day sessions. He found some inmates “intimidating” or “disrespectful.” Also, he had experienced a housing change, from being one of 12 men in a large cell to housing for the Choices program, sharing a small cell with one inmate. This cellmate “wasn’t really nice” and was “kind of like running the place . . . because he was there first.” On examination by the court, father conceded that he had been assured by the director that he would be safe, that counselors and sheriff’s deputies patrolled, and that other inmates were “explaining the process and expectations” of the program—like where to sit and who to talk to—and that he did not like what they expected of him. Other inmates could discipline him if he talked back. He felt “a little threatened,” but not physically. He never asked that his housing be changed. He said he now attends AA meetings: “I always do that after Sitike.”
On being thrown out of the house, father said it was because the mother wanted a relationship with “the new man,” and she and the grandmother had given him a week to move but then changed it to three days. He drank that day (four beers) because of the short notice and because he learned that his 18-year-old daughter, who “[lived] more like a ghetto” (sic) and smoked “weed”—had given birth. He claimed that had been his only substance abuse since being jailed. His relationship with the mother was “one thing that caused me to relapse,” and he did not want that again or plan to get back together with her. Then 38 years old, he had used cocaine since age 25.
One diluted test, he said, was due to drinking too much water.
Ruling
We quote the court’s oral ruling at length and, despite probable inaccuracies in the transcription, verbatim: “Mr. [P.], it was alleged and sustained that back in August of ‘07 the children were at risk of harm and neglect in your care because it was unfit and you were under the influence of cocaine and that you had a history of domestic violence, cocaine abuse, incarcerations, the children were left without a caretaker because you were arrested and the mother was unavailable due to her being incarcerated. And the whole point of this is the issue of substance abuse and failure to take care of the children.
“I’m quite familiar with the Choices Program. I have been up there. I have seen it. I have worked with the people in the Choices Program who have many people drug involved individuals over the years as a superior court judge dealing with adults. It is a safe place. There are deputy sheriffs and/or correctional officers there all the time. The place is a kick butt program. It gets in your face and tries to basically re-make you, and that’s what you didn’t want. You didn’t want that stress, but that’s the stress of life. That’s the stress that is presented by the problems in the community that we have to deal with day after day and that we need to test you to see if you can deal with it and be able to overcome it like you weren’t able to when you drank alcohol and a minor little stress given the consequences.
“You didn’t follow up on that program because it frankly was too tough for you. It had noting to do with disrespect. They are getting in your face to make sure that you can handle it, and they are introducing you to the program. It’s a very successful program.
“Sure, they have people up there that are dangerous. I have dealt with it when I was the presiding judge of criminal where people had three strikes and they were in the Choices Program, but they were trying to give them the tools to deal with that when they were sentenced to prison the rest of their life.
“Now I believe that the Department has presented or provided to you reasonable services since the last time in May, and I don’t think given the time from May until now that you have made substantial progress. You certainly have made some, but not enough. And I don’t believe that there is a substantial probability of the children returning to you in six months given the timing for [E.P.], which originally would be six months because he is under the age of three.
“As a result, unfortunately, I’m going to have to terminate services as to you and set this for a hearing for a permanent plan.
In formal written findings, the court found that: out-of-home placement had gone on for 12 months since the date of removal; “[r]easonable services designed to aid [father] to overcome” the problems leading to removal “ha[d] been provided or offered” but had been unsuccessful, and the department had complied with the case plan by providing reasonable efforts at return; father’s extent of progress toward alleviating or mitigating the removal causes had been “minimal”; and there was “not a substantial probability” of the children being returned to father’s physical custody “within eighteen months of the date [they were] originally taken from parental custody.”
The court continued out-of-home custody, terminated father’s reunification services, continued his weekly supervised visits, and set a permanent plan hearing for April 6, 2009.
Discussion
I. Correction or clarification of findings
Father requests that we correct on appeal, or remand to clarify, the court’s findings regarding minimal progress and probability of return. Unclarity arises, he urges, because the court orally used six-month-review language but then issued its written order in 12-month-review language, leaving it unclear which was intended. The remedy, he urges, is to remand or apply caselaw that an oral rendition controls over a written order. We find neither lack of clarity nor need to correct or remand.
The court at one point spoke of father’s progress this way, “I don’t think given the time from May until now that you have made substantial progress.” Father says this was an intended finding by clear and convincing evidence at six-months, for a child under age three, that a permanent plan hearing was needed because the parent “failed to participate regularly and make substantive progress in a court-ordered treatment plan” (§ 366.21, subd. (e)). Thus he sees an inconsistency in the written order, which left a box for a failure-to-participate finding unchecked but checked a box stating that the extent of father’s progress was “minimal,” a finding assertedly more associated with a 12-month review. Father urges that applying the six-month finding was appropriate here, since the court had found unreasonable services at the actual six-month mark and granted a further six months.
Section 366.21, subdivision (e), governs the review hearing “held six months after the initial dispositional hearing” and specifies in its third paragraph: “If the child was under three years of age on the date of the initial removal . . ., and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.”
There are multiple flaws in his argument. One is that his cited case law rule favoring oral over written orders arises from criminal cases, where the oral rendition is the pronouncement of judgment and, therefore, any nonconformity in a minute order or abstract of judgment is presumably clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 13; cf. People v. Mitchell (2001) 26 Cal.4th 181, 185, 188.) Even in criminal cases, this rule is not mechanical, but yields to a broader rule that a record conflict will be harmonized, if possible, to honor the meaning that demands greater credence given the origin and nature of the problem. (People Smith (1983) 33 Cal.3d 596, 599.)
In a civil case by contrast, it is the written order that ordinarily controls. A prior inconsistency, whether oral or written, is dismissed as a nonbinding antecedent expression of the judge that cannot be used to impugn the formal findings. (Taormino v. Denny (1970) 1 Cal.3d 679, 684; McCracken v. Teets (1953) 41 Cal.2d 648, 651-652.) The civil rule, not the criminal rule, controls in a dependency case, where the final order is signed and entered by the judge, and is not a ministerial act. (In re Jerred H. (2004) 121 Cal.App.4th 793, 798, fn. 3; In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn. 1.) Thus oral comments prevail only where the facts compel the conclusion that the judge did not intend the written result. (In re Maribel T. (2002) 96 Cal.App.4th 82, 86 [inconsistent written order imposed conditions not even discussed at the hearing].)
This record does not compel the conclusion that the judge meant to make a failure-to-participate finding, but mistakenly made a minimal-progress finding instead. To back up a step, however, father incorrectly assumes that the former finding would necessarily be a six-month rather than a 12-month finding. In fact, such a finding is available at both hearings as prima facie evidence that return of a child to a parent would be detrimental. (§ 366.21, subds. (e) [six-month] & (f) [12-month]; rules 5.710(e)(3) [six-month] & 5.715(c)(1) [12-month].)
More importantly, the judge here never uttered words like “failure to participate,” “court-ordered treatment program,” or “substantive,” as in the code language, failure “to participate regularly and make substantive progress in court-ordered treatment programs.” (§ 366.21, subds. (e) & (f).) The court merely used the term “substantial” (not “substantive”), and in this full context: “I don’t think given the time from May until now that you have made substantial progress. You certainly have made some but not enough. And I don’t believe that there is a substantial probability of the children returning to you in six months given the timing for [E.P.], which ordinarily would be six months because he is under the age of three. [¶] As a result, unfortunately, I’m going to have to terminate services as to you and set this for a hearing for a permanent plan.”
Clearly, the poor-progress remark came in the context of finding no substantial probability of return within extended time. We therefore assume that the court had in mind section 366.21, subdivision (g)(1), which states that when a child for whom the usual reunification time has lapsed is not returned, the court may continue the case up to six months more, but only if it finds “a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended period of time” (or that reasonable services have not been provided). Such a probability of return is appropriate only if the court finds “all” of three specified facts, including “[t]hat the parent . . . has made significant progress in resolving problems that led to the child’s removal from the home.” (Id., subd. (g)(1)(B).) While the court here said “substantial” rather than “significant,” it was obviously referring to that subdivision, and the court’s further statement that, “[a]s a result,” it would have “to terminate services as to you and set this for a hearing for a permanent plan,” addressed the same code section, which specifies further on that a substantial-probability-of-return finding is “a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.” (Id., subd. (g)(1)(C).) In other words, the court was explaining why it could not further extend services to put off setting a section 366.26 hearing.
Thus the record does not show that the court orally intended to make a failure-to-participate finding, as opposed to the minimal-progress finding it made in writing. There is, accordingly, no need to “correct” the written order or remand for clarification.
If father means to argue that is was error to apply 12-month rather than six-month code provisions, he fails to persuade us. He invokes the notion that, where reasonable services have not been provided the first time around, a parent should not be penalized by the agency’s shortcomings (see, e.g., In re Dylan T. (1998) 65 Cal.App.4th 765, 775-776 [on remand, mother’s period of incarceration should “not count against her in the court’s evaluating reunification and making of further orders”]). But we see no such penalization on this record. This point was argued by counsel at the start of the hearing, and the court, while not stating that it would conduct a second six-month review, did promise, “I am only going to evaluate in terms of services from the date that your client ended up getting [extended services].” The court kept that promise, stating in the end, “I don’t think given the time from May until now [(December 15, 2008)] that you have made substantial progress.” (Italics added.)
Nor does error appear in the court’s reliance on 12-month provisions. The code requires, at the finding of inadequate services at the six-month point, that “the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e).) That is what the court did, and the 12-month standards expressly provided for even more time if the court should find a further period of unreasonable services or a substantial probability of return within an additional six months. (Id., subd. (g).)
II. Court reliance on its own formation
Father claims that the court’s oral ruling shows misconduct in the form of reliance on evidence known to the court but not in evidence. “When a trial judge sits as the trier of fact, the judge takes the place of a jury, and his or her conduct is subject to the same rules. [Citation.] Consequently, the judge cannot receive information from sources outside the evidence in the case or conduct any out-of-court experiments. [Citations.] Further, although a harmless communication with a party or a witness is not misconduct, it is generally considered misconduct to engage in serious discussion with those persons. [Citation.] By undertaking a collateral investigation, the judge abdicates his or her responsibility for deciding the parties’ dispute on the pleadings and evidence properly brought before the court. [Citation.]” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108-109 (Guadalupe A.).)
Guadalupe A.
examined this problem in a dependency case and found misconduct in a referee’s interactions with the dependent child at a party, something objected to in court through a motion for mistrial by the child’s counsel (Guadalupe A., supra, 234 Cal.App.3d at p. 109): “Although the referee’s first contact . . . could reasonably be considered a harmless ‘social encounter,’ the referee’s initiation of further interaction with Guadalupe is troublesome. There had been testimony that Guadalupe suffered from abnormal ‘stranger anxiety.’ By picking Guadalupe up and carrying her away from her foster mother, the referee was essentially conducting an experiment regarding this alleged ‘stranger anxiety.’ The referee’s comment that Guadalupe went with her without any problems indicates the referee considered her personal experience with Guadalupe in evaluating the case. Whether intentionally or not, the referee received information concerning Guadalupe outside the courtroom at a time when the trial was in progress. This receipt of information on a contested issue cannot be deemed harmless. Rather, it must be characterized as judicial misconduct, and the motion for mistrial should have been granted.” (Id. at p. 109.)
It is not at all clear that misconduct occurred here. As the agency observes, juvenile courts are statutorily expected to be familiar with the drug treatment programs to which they direct parents. Thus, the facts that Judge Holm had visited the Choices program, spoke with its director, and kept himself familiar with the program generally can hardly constitute misconduct. Also, caselaw is careful to condemn only learning of “information concerning the case from sources outside the evidence.” (Guadalupe A., supra, 234 Cal.App.3d at p. 109, italics added.) Here, Judge Holm’s contact and general familiarity with the Choices program (e.g., it was an effective, “kick butt program”) did not include any information particular to father’s performance there. In Guadalupe A., by contrast, the referee had gained out-of-court knowledge of the child and a contested aspect of her behavior.
The Comprehensive Drug Court Implementation Act of 1999 (Health & Saf. Code, § 11970.1 et seq.) requires court involvement in submitting “a comprehensive multiagency drug court plan for implementing cost-effective local drug court systems for adults, juveniles, and parents of children who are . . . dependents of, the juvenile court” (id., § 11970.2, subd. (a)), and the plan must “[d]escribe existing programs that serve” such individuals (id., subd. (a)(1)) and develop “information-sharing systems . . . to provide data for measuring the success of the local action plan in achieving its goals” (id., subd. (a)(3)).
Father focuses on the court’s impression that the facility was patrolled and safe, and supposes that this impression caused the court to discount the reasonableness of father’s testimony that he felt threatened—and thus the good faith of his efforts. One problem with this argument, however, is that a great deal of this information was properly in evidence through father’s own testimony, which revealed that the program was indeed patrolled by counselors and sheriff’s deputies, and that father had been assured by the program head that he would be safe. Moreover, Father testified that he had not felt “physically” threatened by anyone.
After testifying that he had felt “a little threatened,” father clarified, “Not really,” when asked, “Did you feel physically threatened by any of those people?” Then this questioning by the court followed:
In any event, we conclude that father forfeited any claim of judicial misconduct by not objecting in any form below. Forfeiture ordinarily applies in a dependency proceeding, as in any other. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) No finding or resulting decision may “be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion[.]” (Evid. Code, § 353, subd. (a).) A claim of judicial misconduct is also ordinarily forfeited on appeal if not raised below. (People v. Hines (1997) 15 Cal.4th 997, 1041.) In Guadalupe A., the claim was deemed preserved by the ruling on the mistrial motion. (Guadalupe A., supra, 234 Cal.App.3d at p. 108.) Here, there was no objection on any ground.
Father’s only response is this claim of futility: “This is not a matter in which an objection could have cured the prejudice by an admonition. One can’t ‘unring a bell.’ ” We disagree. A judge inevitably “will become aware of information that is not presented to the jury. As an aspect of the presumption that judicial duty is properly performed, we presume, nonetheless, . . . that the court knows and applies the correct statutory and case law [citation] and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 644.) In other words, we presume that a judge is able to “unring the bell” where required by the law. Nothing in our record rebuts that presumption. Indeed, the record does not show that the court necessarily rejected father’s testimony that security at the program was not as thorough as what the court may otherwise have assumed. A proper objection should have been effective, and the claim of judicial misconduct is therefore forfeited.
III. Insufficient evidence for findings
Our review of challenged findings is limited. “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [finding], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) In other words, in the presence of substantial evidence, we are without the power to reweigh conflicting evidence and alter a dependency court’s determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
A. “Failure to participate.”
Father claims that his reunification services were erroneously terminated because no substantial evidence supports a finding of failure to regularly participate in, and make substantive progress with, his case plan. As already explained, however (part I, ante), the court never made that finding. The oral ruminations that father attacks, rather, concerned why the court decided it could not find a substantial probability of return, within extended time, so as to justify ordering extending services (§ 366.21, subd. (g)(1)).
We accordingly examine support for that true determination by the court. A problem in adapting father’s briefing to this task, however, is that he stresses mostly plan compliance, whereas a finding of probability of return required that the court find “all of the following” subfindings: that the parent (A) “has consistently and regularly contacted and visited with the child,” (B) “has made significant progress in resolving problems that led to the child’s removal from the home,” and (C) “has demonstrated the capacity and ability both to complete the objectives of his . . . treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).) Also, by claiming lack of substantial evidence for an absence of findings, father in effect must show that each finding was compelled “as a matter of law,” i.e., “the only reasonable hypothesis” based on the evidence. (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099; accord In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Assuming for sake of argument that subfinding (A) might have been compelled given father’s record of visitation, subfindings (B) and (C) were not. Father marshals partial support for findings of “significant” progress in resolving problems that led to removal and his ability to complete the objectives of his treatment plan, but he shows little support for the broader question of his ability “to provide for the child[ren]’s safety, protection, physical and emotional well-being” (§ 366.21, subd. (g)(1)(C)). We therefore focus on that part of the required subfindings.
Most glaring here is whether father could provide a safe and stable home for the children. This was a problem leading led to their removal, for they were found living in a “filthy” home, unsupervised. Throughout most of the reunification period, father made no effort to show his ability to satisfy this need, as he was either incarcerated or stayed in the maternal grandmother’s home, which was unsuitable because of the presence of the grandmother’s longtime boyfriend, a registered sex offender who had in fact molested the mother in her youth. When the grandmother finally expelled father from her home on September 9, 2008, for drinking, he had to confront the suitable housing need for the first time. We find nothing in the record, premised on the three months between his expulsion and the hearing, to compel a finding that he showed himself able at that point to provide safe and suitable housing.
Because the overarching statutory question in section 366.21, subdivision (g)(1), is whether a child can be returned within an extended period of further services, one might question whether the requisite subfindings have to be satisfied as of the hearing or, instead, as of the end of the extended time. The wording of the subfindings, however, speak to the time of the hearing. Subfinding (B) speaks of having “made significant progress in resolving problems that led to the child’s removal from the home.” Mere “significant progress” at the end of the extended time would be just the starting point for a return and, therefore, must be read as a circumstance extant at the hearing. Similarly, subfinding (C) speaks of having “demonstrated the capacity and ability both to complete the objectives of his . . . treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” “Capacity and ability” must connote extant circumstances, for mere potential to achieve plan goals by the end of extended services would, again, only be a beginning. (§ 366.21, subd. (g)(1)(B)-(C).)
The 12-month review report of September 19 gave this information: “[Father] reported that he is currently not working, but worked for the last three weeks of August 2008, with his friend, ‘Sonny’ who is a cabinet and window contractor. [He] explained that when his friend has a remodeling job he will work full time with him on the job. He is presently waiting for the next job to begin. [He] explained that once he moves into his employer/friend’s home, then he will begin to save money and then look into his own housing options.”
An addendum report of September 26 gave father’s address as “unknown,” and elaborated: “[He] is presently unemployed as he waits for inconsistent contracting work as a laborer installing windows and cabinets. [He] has been unsuccessful in stabilizing his employment and housing situation, during the last [12] months of court involvement, which has resulted in [his] not having any stable housing or consistent income to support the children with.”
An addendum of December 11 indicated that father lived at an address in Daly City. Father reported that he had been living with a friend in Daly City since being forced out of the grandmother’s home, had worked since September with the same friend, and had earned $1500 in November. Social worker Sedilla met with father on November 13, and he reported telling his stepsister, M.L., the children’s caretaker, “that she did not have to worry about losing the children because if the children are returned by the court he would move in with her and leave the children where they are.” Sedilla then met with father at the Daly City apartment on December 5 and asked him about his “housing options” should the court return the children. “[Father] stated that if his stepsister, Miriam, current caretaker, does not allow him to move in with her, then his other option would be to bring the children to the apartment where he resides.” Sedilla described the apartment as having one bedroom in which the friend and friend’s girlfriend lived, and a living room, spread with business-related “cabinet, floor, and window” displays, with two fold-out couch beds where father slept. The apartment had a microwave and “miniature” refrigerator, but no stove or oven. A small bathroom had a shower head and nozzle coming out of the wall, and father and the friend told Sedilla they planned to remodel it and the living room “to be more residential and not industrial in nature if the children were returned to [father].”
When Sedilla spoke with M.L. shortly before the hearing and related father’s idea of leaving the children in her home and having them all living there together, the stepsister said she would not allow it to happen and saw the idea as a sign of father’s “immaturity.” She also disapproved of father’s proposal to her that “he could stay there and handle the daily routine of getting [C.P.] ready for school”; she felt “it showed [his] lack of planning to be employed.” The stepsister also felt that father was “immature in not realizing that the emotions would be too difficult to deal with if the court [gave] the children back to [him] but she and her husband still had the children in their home.”
Attached to the last addendum was a December 9, 2008, report by PSHC social worker Susan Farabee. “I am concerned that many of the issues that brought this family to the attention CPS have not been resolved. In addition, despite [father] completing many requirements, at our session today [he] stated that when the children were returned to him, . . . he wanted their mother to be a part of their lives and she would help him in the care of the children. This is of great concern, as the mother has not completed any of the requirements of CPS, [and] there have been allegations that she has [made] inappropriate remarks in the past [to C.P.]. At the most recent supervised visit that mother and father were present at, [C.P] returned home, was unable to sleep and reported . . ., ‘I am going home to live with my mommy and daddy.’ It is suspected that someone said something to her at this visit.” “[I]t continues to be clear,” Farabee wrote, “that [father] has an ongoing relationship with [the mother] that may continue to impact the safety and well-being of [C.P.] and her brother.”
Sedilla seconded that concern in testimony at the hearing six days later, saying: “From what I have been able to observe, [father’s] choice to include the mother in his visitation and both parents attending the visitation together and comments father made to the therapist about planning to have the mother involved should he receive the children back, planning to have the mother . . . providing care, that all points to his continuing involvement with the mother.” The relationship with the mother, he noted, was one of the stressors cited by father for his recent relapse, and he reported that mother had custody of her newborn and was residing once more in the grandmother’s home.
In his own testimony father confirmed that his relationship with the mother was “the biggest” stressor that caused his relapse, and he acknowledged that reuniting with her would be harmful to the kids because “[s]he could be hostile sometimes when hard time comes.” But he insisted that he was “over her” now, did not want to “go through that same stress again,” and was not planning to reunite.
On the job front, father said he was still “teaming up” with his friend in the home remodeling business, and earning about $1,500 a month, but was looking for “a full-time job and [to] do [the other] part time.” He was looking for jobs in “[s]hipping, receiving, warehouse, forklift driver.” When asked about his current abode with a limited bathroom and no regular kitchen, father did not mention remodeling but said he did not plan to stay there. He was “planning on just full-time job and get a two bedroom apartment, at least two bedroom apartment in the future.” “This is just temporary,” he said, “just to get everything going for myself and get a better place.”
On that evidence, the court could reasonably conclude that father had not shown his ability “to provide for the child[ren]’s safety, protection, physical and emotional well-being” (§ 366.21, subd. (g)(1)(C)) and, thus, that there could be no further extension of services on a finding of a substantial probability of return within the available extended time. We note that, given delays in the review hearings along the way, the remaining time was not a full six months, but only a bit under four months before the 18-month mark of April 23, 2009. (See fn. 2, ante; Jessica A. v. Superior Court (2004) 124 Cal.App.4th 636, 643-645.)
The evidence did not clearly demonstrate an imminent prospect of full-time work or securing suitable housing in time. By his own testimony, father was doing part-time, intermittent work with his boss/friend/cohabitant and, we infer in support of the order, could not afford to move to suitable quarters unless he found other, full-time work. Father was vague and unspecific about his claim to be looking for work, and he did not identify any leads, prospects, or places to which he had applied. In fact, his plan as revealed to his stepsister—to take care of the children at home (if he regained custody and she allowed him and the children to live with her)—reasonably suggested, as the stepsister surmised, that he did not seriously contemplate seeking full-time work. This, together with the lack of specifics about looking for full-time work, gave the court reason to discount father’s sincerity. But even if father was deemed sincere, his testimony was that a full-time job would enable him to start saving money toward getting a suitable abode sometime in the future. Nothing suggests that, even with a specific job on the horizon, he could secure suitable quarters within the extended time. Father implicitly conceded in his testimony that his current small and substandard abode, given the number of existing occupants, would not be suitable to share with the children as well, and he said nothing about the idea (or feasibility) of remodeling as he had earlier suggested.
Another problem was the specter of reunifying with the mother. The court was not compelled to credit father’s backtracking on this point at the hearing, and father conceded in testimony that reuniting with her would be harmful to the children and jeopardize his own ability to remain free of drugs or alcohol. The caregiver/stepsister was not willing to be part of a reunited family, and father had no apparent plan for the children’s care, short of living with the mother. She had satisfied no significant part of her own reunification plan and now had an additional child to care for—a newborn that was not the father’s. Thus, without having to thoroughly explore the solidity of father’s progress with substance abuse, the court’s denial of further services is supported. It is enough to note that the court could find that father’s short-lived efforts in jail with the Choices program showed a lack of commitment and cast doubt on how long his eleventh-hour strides with testing, the Sitike program, and NA/AA attendance, would last.
B. Reasonable services.
Father’s only assault on the reasonable-services finding is that the initial case plan required him to “[a]ttend and make progress in a County Certified Domestic Violence Prevention Program,” but that later updates and reports are silent on this component, or any specific referrals to such a program, unless the parenting class satisfied the requirement. The agency fails to brief this issue.
We do find it odd that the domestic-violence component is not mentioned beyond the initial plan, particularly since father’s “history of domestic violence” was alleged in the petition as contributing to his failure to protect. However, reunification services must be “ ‘reasonable under the circumstances,’ ” not “ ‘the best that might be provided in an ideal world’ ” (In re Christina L. (1992) 3 Cal.App.4th 404, 417, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547). And we must confine father’s challenge to services provided since the six-month hearing, the reasonable-services finding of which was itself appealable and beyond our review upon this later appeal. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Cody W. (1994) 31 Cal.App.4th 221, 231.) Father prevailed then in persuading the court that services had not been reasonable; he cannot claim a further defect now.
Assuming for sake of argument that the services from May 6 through December 15, 2008, were deficient in not specifically addressing domestic violence, and that this deficiency was enough to render the total services unreasonable, we do not see prejudice—that is, a reasonable probability of a better outcome had the deficiency not existed. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13.) Father’s problems were manifold and, in the end, centered on lack of sobriety, stable work, and suitable housing. While father did have a history of domestic violence that played some role earlier in the case, it does not appear that this posed a significant problem or obstacle to his progress in the months following the six-month review. He was jailed for the first two and a half months of that time. Later, even the prospect of father reuniting with the mother did not expressly rest on risk of violence between the parents, but on her failure to succeed in any aspect of her own plan, the added pressure of her now having a new infant, and the risk of father relapsing into substance abuse. No prejudice appears.
Disposition
The petition is denied on the merits (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888 [barring subsequent challenges by appeal]; § 366.26, subd. (l)(1)); given the immanency of the permanent plan hearing set for April 6, 2009, our decision is final as to this court immediately (Cal. Rules of Court, rule 8.264(b)(3)).
We concur: Kline, P.J., Haerle, J.
Judge Holm also spoke of his experience with the Choices program as a presiding judge on the criminal bench, and the Drug Court Partnership Act of 2002 (Health & Saf. Code, § 11970.45 et seq.) requires a multiagency plan that has a component showing “[t]he elements of the treatment and supervision programs” (id., subd. (b)(7)(C)(ii)).
“The Court: There were deputy sheriffs up in the pod, weren’t there?
“[Father]: Sometimes.
“The Court: They were all the time. Right?
“[Father]: Mostly counselors.
“The Court: It’s run by Delancy Street, isn’t it?
“[Father]: I believe so, yes.”
Earlier questioning by the court included this:
“The Court: Mr. [P.], when you went to the Choices Program for five days, did you meet Shirley Lamar? [The head of it?]
“[Father]: Yes.
“The Court: She told you what the program was about?
“[Father]: Yes.
“The Court: She told you what was expected of you?
“[Father]: Yes.
“The Court: She told you you would be safe up there, didn’t she?
“[Father]: Yes, she did.
“The Court: And that you can wander around the pod from time to time, right?
“[Father]: Yes.”