Cesar S. v. Sup. Ct.

Filed 6/6/07 Cesar S. v. Sup. Ct. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; Petition for extraordinary writ. Jacqueline Lewis, Referee. Writ denied.

Helen Yee for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Owen L. Gallagher, Principal Deputy County Counsel, for Real Party in Interest.

* * * * * *

Petitioner, Cesar S., Jr., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code,  366.26, subd. (l);^[1]Cal. Rules of Court, rule 8.542.) We find sufficient evidence supports the juvenile courts finding that petitioner did not substantially comply with the juvenile court orders and therefore deny the petition.

I. PROCEDURAL HISTORY AND STATEMENT OF FACTS

Dependency Petition. On October 13, 2005, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of Kyle M. (born May 2001) pursuant to section 300, subdivisions (b)(1), (b)(2) and (c)(1). It was alleged petitioner had exposed Kyle to detrimental and endangering conditions by causing him to live in a dirty and cluttered bus that contained a four-foot, flammable, explosive cylinder of hydrogen gas^[2]and a five-gallon container of commercial chemicals and that a Los Angeles County hazardous materials team was required to remove the gas and chemicals. It was also alleged Kyle suffered from a poor state of hygiene consisting of dirty skin and clothing as well as multiple scratches and marks on his body, which caused the child severe anxiety, depression, withdrawal and untoward aggressive behavior towards himself and others.^[3]

Detention Hearing. A detention hearing was held on October 13, 2005. DCFS reported that it had received 13 referrals concerning petitioner, Kyle and Kyles mother. In August 2004 petitioner and Kyles mother signed a 12-month voluntary family maintenance (VFM) contract. Kyles mother, who was a heroin addict and on methadone at the time of Kyles birth, died in October 2004 of a Vicodin overdose. The VFM contract was terminated in May 2005.

In early October 2005, referrals were made to the child abuse hotline advising that Kyle appeared filthy and had been asking for food and that petitioner searched the neighborhood at night for junk, which he brought back to the bus. It was also reported that petitioner left Kyle alone sleeping in the bus. The police were called and it was determined that Kyle and petitioner were living in the bus outside the former residence of Kyles mother. While petitioner had been taking care of Kyle for a significant period of time, it appeared he was unable to ensure the childs well-being. The social worker noted a strong emotional bond between father and son. After Kyles detention, petitioner made numerous calls to the social worker regarding Kyles well-being and expressed his willingness to attend the detention hearing.

The social worker assessed a family friend and Kyles godmother, June P., as a possible placement for Kyle. June P. denied petitioner and Kyle had been sleeping in the bus. She described petitioner as a very good father, although he was a pack rat. Kyle told the social worker that he wanted to return to petitioner. Petitioner denied he and Kyle were living in the bus and stated he went to his deceased wifes residence to remove her belongings.

On October 11, 2005, June P. came to the social workers office for a live scan as part of the home assessment. Immediate visitation between petitioner and Kyle was arranged. Although a visit was scheduled for the following day, it could not take place because DCFS could not arrange transportation.

On October 13, 2005, petitioner appeared for the detention hearing. The juvenile court granted him presumed father status, continued the detention hearing to October 14, 2005, and made temporary detention orders. DCFS was directed to submit a supplemental report addressing placement of Kyle with June P. Petitioner was granted monitored visitation.

Continued Detention Hearing. A continued detention hearing was held on October 14, 2005. The juvenile court had before it the DCFS service log for the period January 1, 2004, through June 1, 2005, showing the number of contacts made with petitioner, Kyle and Kyles mother.

The juvenile court also had before it a copy of the August 2004 VFM contract. The contract indicated that numerous referrals had been made for neglect and that petitioner and Kyles mother had had a history of domestic violence. It was noted that petitioner stored many collected items around the house, making it difficult to move about the house freely. Petitioner was also distrustful of social services. Both parents relied on SSI for their income. The service objectives included staying sober, meeting Kyles physical and emotional needs, avoiding domestic violence and complying with medical and psychological treatment.

Attached to the VFM contract were various documents showing the services which had been provided to the family under the VFM, including family team decision-making.

The juvenile court found that reasonable efforts had been made to prevent Kyles detention. DCFS was ordered to provide petitioner with referrals for drug testing, individual counseling, and parenting. The juvenile court also ordered that June P. be investigated and directed DCFS to prepare a prerelease report for a hearing scheduled for October 17, 2005. Petitioners visits were to occur as often as can be arranged.

Pretrial Release Hearing. A pretrial release hearing was held on October 17, 2005. DCFS was directed to provide petitioner and Kyle with family reunification services.

First Amended Petition. On November 17, 2005, DCFS filed a first amended petition. It was once again alleged that petitioner had placed Kyle in a detrimental and endangering situation and that Kyle, when detained, was found in a poor state of hygiene. It was also alleged that petitioner had an unresolved history of mental problems.

Pretrial Resolution Conference. A pretrial resolution conference was held on November 17, 2005. Kyle was ordered to remain detained in June P.s home.

In reports prepared for the hearing, DCFS advised that petitioners mental health had always been an issue in the case and that DCFS was not completely convinced petitioner was Kyles biological father. The social worker continued to express concerns about June P., believing petitioner might be living in her home. June P. was very protective of petitioner and petitioner appeared always to be present at Kyles doctor visits and school. It was unusual that June P. was petitioners ex-girlfriend and that June P. was now married but living separately from her husband. DCFS indicated it would continue to monitor the situation.

The juvenile court ordered paternity testing and granted petitioner monitored visitation.

Pretrial Resolution Conference. A pretrial resolution hearing was held on December 15, 2005. The juvenile court had before it an information report which indicated that Kyles maternal aunt had serious concerns about petitioners stability. The aunt, who lived in New York, stated she wanted custody of Kyle. The aunt also indicated that although she was grateful to June P. for caring for Kyle, the child needed to be with family. The social worker therefore recommended that an Interstate Compact Investigation (ICPC) be initiated on the aunts home in New York.

The juvenile court continued the pretrial resolution hearing because the paternity test result had not been received. DCFS was directed to ensure that petitioners visits occurred weekly and was granted discretion to allow petitioner visits outside the DCFS offices, if an appropriate monitor could be found.

Pretrial Resolution Conference. A pretrial resolution conference was held on January 25, 2006. The juvenile court received the paternity test results, and petitioner was confirmed to be Kyles biological father.

Petitioner, Kyle, June P. and several individuals familiar with petitioner and Kyle prior to Kyles detention were interviewed by a DCFS investigator in an effort to learn where petitioner and Kyle had resided prior to and after Kyles detention. According to petitioners prior landlord, Kyles mother rented an apartment located on Alabama Avenue in Canoga Park (Alabama apartment). Later, petitioner resided there. Later still, after the mothers death, petitioner was evicted.

When asked where he lived, Kyle denied that he had ever lived in the cluttered bus. Kyle stated petitioner was currently sleeping at home, and the bus was where petitioner kept his belongings. Petitioner also denied living in the bus. He claimed he was currently staying with a friend who was selling his house.

June P. claimed that Kyle had been living with her on-and-off for most of his life, because his mother was frequently unable to care for him. June P. said that petitioner and Kyle had lived with her for the past two and a half years, even though they would continue to frequent the Alabama apartment where Kyles mother lived before her death.

Individuals familiar with Kyles living conditions prior to his detention advised that when Kyle and petitioner lived in the Alabama apartment it was stuffed with junk. Later, petitioner lived in the bus, which was also cluttered. At no time did Kyle and petitioner live with June P. In fact, June P. had informed one of these individuals that Kyle and petitioner did not live with her, but that she provided them with weekly showers. When petitioner was finally evicted from the Alabama apartment the landlord found trash stacked 30 inches high. The fire department was called to remove explosives, batteries and pressurized canisters. The landlord filled a 40 cubic yard dumpster with the junk left in the apartment.

Another individual stated that petitioner threatened neighbors who gave Kyle food and juice. One neighbor saw Kyle out at two in the morning looking for petitioner.

June P. denied that Kyle had ever been so dirty that it endangered his health. She claimed she frequently bathed him. She also denied that petitioner suffered from a mental illness, although she was aware that he had seen a psychiatrist in the past. When asked about the clutter found inside the bus and the Canoga Park apartment, June P. made it sound that the extreme clutter in the apartment and bus was due to the fact that petitioner was grieving over the loss of Kyles mother. However, the social worker noted that the cluttered condition of the bus and the Alabama apartment predated the mothers death.

The social worker expressed concern regarding Kyles placement with June P. because it appeared she was covering for [petitioner] and . . . not being completely honest with DCFS.

Petitioner continued to feel that Kyle should not have been removed from his custody because he had been providing for the child. He was aware of the childs aggressive behaviors, but claimed he had taken steps to put Kyle in a special school to address this problem.

Petitioner denied any current mental illness, but stated he had been diagnosed with depression 25 to 30 years ago. He stated he was unable to accept society for what it is and that he never paid taxes because if you pay taxes, then you are guilty of killing children. The social worker concluded that petitioner had mental and emotional problems based on his unusual and bizarre behavior.

The juvenile court ordered petitioner and Kyle to undergo an Evidence Code section 730 evaluation and set a hearing for March 13, 2006.

Psychological Evaluations. Alfredo E. Crespo, Ph.D. was appointed to perform evaluations to determine: 1) whether petitioner suffers from a mental condition and whether such condition poses a risk to Kyle, and 2) what services should be in place to help Kyle with his reported oppositional behavior and short attention span.

On March 7, 2006, Dr. Crespo submitted his report. Dr. Crespo remarked that June P., who brought Kyle to the evaluation, had a remarkable and unusual presentation from the moment he contacted her to set up the appointment. She considered petitioner like a brother, and indicated she was prepared to adopt Kyle if petitioner was unable to reunify with him. She also arranged to cut petitioners visit with Kyle short by insisting that she needed to be elsewhere that day. Dr. Crespo considered Kyle somewhat hyperactive, and the child repeatedly stated that he lived with his father in the same home and that he slept with petitioner. When petitioner joined Kyle and Dr. Crespo, the child and petitioner eventually engaged in successful play activities. Kyle eventually indicated that he did not live with petitioner, that he actually lived with June P. Kyle wanted to leave with petitioner at the end of the visit and became very clingy before agreeing to leave with June P.

Dr. Crespo administered testing to petitioner and concluded that he appeared to be immature, narcissistic, and self-indulgent. He was passive-dependent and made excessive demands on others for attention and sympathy but resented it when mild demands were made on him. Dr. Crespo concluded that petitioner had a long history of being unable to provide stability for Kyle, and what Kyle needed was consistency and stability. Petitioner was not a good candidate for therapy and should be evaluated by a psychiatrist for medication. Dr. Crespo predicted that petitioner would not comply with counseling, but he might comply, if he believed that doing so would enable him to have liberalized visitation with Kyle.

Section 385 Petition. On March 16, 2006, DCFS filed a section 385 petition for the purpose of removing Kyle from June P.s home, on the basis that Kyle continued to report that petitioner was living there.

Adjudication Hearing. An adjudication hearing was held on March 16, 2006. June P. was ordered to undergo a 730 evaluation. Petitioner signed a waiver of his trial rights and pled no contest to an amended petition under section 300, subdivision (b). Petitioner also signed a case plan, whereby he agreed to complete a parenting class, conjoint counseling with Kyle when deemed appropriate by Kyles therapist and individual counseling with a licensed therapist to address his mental health issues. Petitioner also agreed to undergo a psychiatric examination and to comply with all prescribed medication. Petitioner was granted visitation to be monitored by a DCFS approved monitor. DCFS was given the discretion to liberalize the visitation. Petitioners visits were to occur not less than twice a week and he was to have one monitored phone call per day. Copies of the 730 evaluations, sustained petitions, case plan, and court reports were to be provided to the treatment providers.

Petitioners Request for Rehearing. Petitioner filed a request for rehearing, on the basis that DCFS had not cared for Kyle in a responsible manner by damaging the relationship between Kyle and petitioner and by taking him out of his special school. Petitioner also contended that he did not understand the written stipulation he had signed and that the minute order misrepresented the facts of the case.

Petitioners Section 388 Petition. On April 25, 2006, petitioner filed a section 388 petition requesting unmonitored visits with Kyle. Petitioner alleged that he had participated in individual counseling and psychiatric treatment since November 2, 2005, that he had stabilized emotionally, and that he was participating in parenting classes. Petitioner indicated that Kyle was extremely bonded to him and had been placed in a foster home far from where father lived which required petitioner to take long bus rides to the visitation site and affected the length of the visits. Petitioner attached two letters from El Centro de Amistad, Inc., the first written by Daniel Grosz, psychiatrist, dated April 24, 2006, which stated that petitioner had been participating in counseling since November 2, 2005. Petitioner had been on time and present for every session. He had been diagnosed with bipolar disorder and depression, had declined medication due to his religious beliefs, but was offered and had been complying with a regimen of Omega-3 fatty acids. The second letter, written by Estela Posternak, an intern, and countersigned by Luann Rollens, the clinical director, indicated that petitioner was always prompt to his individual therapy sessions and had participated in the therapy process, discussing issues of family dynamics, anger management, communication skills and compliance with medication and court requirements.

On May 4, 2006, the juvenile court denied the section 388 petition, on the basis that it failed to state new evidence or a change in circumstances.

June P.s De Facto Parent Request. On May 4, 2006, June P. filed a de facto parent request. DCFS expressed serious concerns about June P.s alignment with petitioner, her negative attitude towards DCFS and her inappropriate comments to Kyle. The social worker therefore recommended that all prior orders remain in place and that June P. be evaluated for medication. The juvenile court set a hearing on June 1, 2006, and ordered that any objections be filed by May 25, 2006.

In reports prepared for the June 1, 2006 hearing, DCFS advised that Kyle had been moved to a different foster home, where the foster parents were particularly adept at dealing with children with the type of behavioral problems exhibited by Kyle. Kyle was acting out and using foul language, he had a condition which caused him to fall a lot, and he had been extremely thin upon placement. However, he now appeared to be gaining weight. The foster parents were concerned about petitioners threats towards them, and petitioner would ask Kyle about every scratch during visits. Petitioner continued to blame DCFS for Kyles placement in foster care. Kyles maternal aunt continued to express interest in obtaining custody of Kyle, but Kyle was doing very well in the new foster home. June P. was not in counseling. Petitioners monitored visits were taking place every Friday at a foster family agency.

On June 1, 2006, the juvenile court granted June P.s request for de facto parent status. In making its decision the juvenile court considered Dr. Crespos 730 evaluation of June P. Dr. Crespo recommended that June P. be granted de facto parent status because she was likely [a] mother surrogate to the minor, and because he believed it would benefit Kyle to eventually be returned to her.

Section 366.21, subdivision (e) Hearing. A section 366.21, subdivision (e) hearing was held on July 14, 2006.

DCFS reported that Kyles foster parents had asked that he be removed from their home. Kyle was then returned to June P., who was prepared to adopt him. The ICPC was still pending.

Petitioner had been attending counseling at El Centro de Amistad, Inc. with an intern. He refused to admit he needed psychotropic medication and was still taking fatty acids rather than his prescribed medication. Although petitioner reported having completed a parenting class, he provided no proof. Nor had petitioner provided his current address. Petitioner was under stress and constantly worried due to custody issues with DCFS and unsettled living arrangements. Petitioner still blamed DCFS for Kyles removal and did not believe he had anger management problems. The social worker concluded that petitioner was in partial compliance with the case plan and recommended continued reunification services, with no change in orders. Petitioner had missed a visit on July 7, 2006.

Attached letters from Ms. Posternak and Dr. Grosz indicated that petitioner was still consistently attending individual counseling, was punctual and present for each session, and was still taking fatty acids for treatment of his diagnosed bipolar disorder.

On July 14, 2006, petitioner set the section 366.21, subdivision (e) hearing for contest.

Contested Section 366.21, subdivision (e) Hearing. On August 29, 2006, the juvenile court held a contested section 366.21, subdivision (e) hearing.

DCFS submitted a letter dated May 5, 2006, written by Dr. Robert N. Titcher, who noted that petitioner had been under his care for 20 years. Dr. Titcher reported that petitioner did not have any drug problems and that he was not known to have any serious psychological conditions which would place Kyle in danger. DCFS noted, however, that Dr. Titcher specialized in internal medicine, not psychiatry.

DCFS had received no information regarding petitioners claim that he had completed parenting classes. Though petitioner was visiting with Kyle every Wednesday, he was 25 to 50 minutes late for every visit and talked on his cell phone during visits. On one visit he brought a woman with him and introduced her as a potential monitor. The social worker did not believe June P. should monitor petitioners visits, as she did not seem to appreciate petitioners serious limitations as a parent. The social worker recommended that all prior orders remain unchanged.

On August 29, 2006, the juvenile court admitted into evidence DCFS reports of August 29, 2006, and July 14, 2006. The court continued the prior orders in full force and effect, finding that petitioner was in partial compliance with the case plan and that DCFS had made reasonable efforts to enable Kyles safe return home.

Section 366.21, subdivision (f) Hearing. A section 366.21, subdivision (f) hearing was held on December 18, 2006.

In a report prepared for the hearing, DCFS indicated that Kyle was still living with June P. Petitioners weekly visits were mostly 25 minutes long and they were unstable and sometimes inappropriate. Petitioner was still consistently attending counseling from the intern, Ms. Posternak. He had started parenting classes in October 2006 but had not yet finished them and he still had not given the social worker his current address.

The social worker had spoken with petitioners therapist, Dr. Grosz, who stated that petitioner was pretty much the same. Petitioner continued to take fatty acids instead of psychotropic medication. Dr. Grosz had given petitioner referrals for a second opinion, but petitioner had failed to follow through with the evaluation. Petitioners parenting instructor told the social worker that petitioner sometimes had difficulty focusing on the subject matter. Petitioner indicated that he had not had stable housing since being forced to move out of June P.s home to enable Kyles placement there. June P. was still prepared to adopt Kyle.

Based on this information, the social worker concluded that petitioner had made no progress and that family reunification services should be terminated.

On December 18, 2006, petitioner set the matter for contested hearing. The juvenile court granted DCFS discretion to allow June P. to monitor petitioners visits outside the DCFS offices.

Contested Section 366.21, subdivision (f) Hearing. A contested section 366.21, subdivision (f) hearing was held on February 8, 2007.

In a report prepared for the hearing, DCFS noted that petitioner had changed his visits to Thursdays. On January 4, 2007, petitioner came in 50 minutes late and the visit was canceled. On January 9, 2007, the social worker provided petitioner with a letter about the new visitation arrangement and reminded petitioner to be on time so as not to have a negative impact on the childs emotional well-being. On January 11, 2007, June P. canceled the visit due to petitioners illness. On January 18, 2007, petitioner came 45 minutes late, was inappropriately upset in front of the child concerning DCFS, which had an adverse effect on Kyle, who started yelling at the social worker. On January 25, 2007, petitioner again came 45 minutes late for the visit. DCFS did not liberalize petitioners visits because of petitioners tardiness for each visit, his inappropriate discussion about case issues, threatening of the social worker and overall upset of Kyle.

In a letter submitted to the court petitioners parenting instructor noted petitioners regular class attendance and described petitioner as steady [and] positive noting that petitioner was working hard on his parenting skills.

Petitioner testified that he had participated in individual counseling on a weekly basis with Ms. Posternak since November 2, 2005, wherein he had addressed family dynamics, improper behavior, how to communicate with and protect Kyle and how to handle him in different situations. Petitioner had also discussed handling aggressive behavior by not overreacting. He had dealt with anger management issues and had learned to discuss feelings with another person to relieve pressure. He became angry because he realized he could not conduct his life as he wanted. He had ideas from his individual counseling and from the parenting classes as well. He was almost finished with his parenting classes, with only four more sessions to complete. He had participated in another parenting class and had given that information to the previous social worker.

Petitioner had seen Dr. Grosz only three times over the past year. Petitioner knew he had been diagnosed as having bipolar disorder and Dr. Grosz had explained the possible treatments to him, one of which was the fatty acids treatment he had chosen. However, Dr. Groszs recommended dosage was higher than what petitioner took. He did not believe he had moods swings. He did not agree with Dr. Groszs diagnosis of bipolar disorder, which was arrived at on the first visit. He wanted a second opinion, and the evaluation was being set up when the juvenile court date arrived.

Petitioner noted that he had been under Dr. Titchers care for 20 years. He claimed he had also been treated for the past year by Dr. Alex Matthews, a psychiatrist. He had not given the social worker Dr. Matthews name because he did not trust DCFS.

Petitioner believed he had complied with the case plan because he had been participating in weekly therapy sessions, seeing Dr. Grosz and had been visiting Kyle regularly. The visits were frustrating at times because Kyle was tired of the rooms where the visits took place and wanted to go elsewhere.

DCFS asked that reunification services be terminated because petitioner had failed to participate regularly in the case plan. Kyles counsel concurred, arguing that petitioner had only completed a fraction of the case plan.

Petitioner argued that he had complied with the case plan because he had participated regularly in therapy and had seen his psychiatrist, who had given him the option of taking a higher dosage of Omega-3 fatty acids instead of psychotropic medication. Petitioner was eager to get the second opinion of his diagnosis, because he believed that there was no need for medication, and DCFS did not have evidence that petitioner had a prescription that he was not filling. Petitioners attendance in counseling was consistent and regular since November 2005, and he was addressing the issues specified in the case plan. Petitioner had only four more parenting classes to fulfill to complete the parenting component, he had been visiting Kyle, and they had a close relationship. There had been no conjoint counseling, but Kyles therapist had apparently never deemed it appropriate. Petitioners treatment providers had been given copies of the 730 evaluations, the DCFS reports, the petitions and yet they still made positive recommendations. Therefore, petitioner had addressed all the issues and Kyle should be returned to him. Petitioners counsel argued, in the alternative, that petitioner should be accorded an additional six months of family reunification services to allow him to successfully complete the case plan.

The juvenile court found by a preponderance of the evidence that return of Kyle to petitioner would create a substantial risk of detriment to Kyles physical and emotional well-being, DCFS had complied with the case plan by making reasonable efforts to enable Kyles safe return home, Kyle could not be returned to the petitioners physical custody and there existed no substantial probability Kyle would be returned within six months. The court found by clear and convincing evidence that petitioner had made minimal progress in the court-ordered case plan and that while petitioner had regularly visited Kyle, he had not made significant progress in overcoming the problems which led to Kyles detention. The court terminated reunification services and set a section 366.26 hearing for June 7, 2007.

Petitioner filed a notice of intent to file writ petition.

II. CONTENTIONS

Petitioner contends the juvenile court erred in terminating his reunification services because he had fully complied with the case plan and services were available to ensure that reunification would succeed should Kyle be returned to his care. Alternatively, petitioner claims that based on his level of compliance at the time of the section 366.21, subdivision (f) hearing, the juvenile court erred in failing to extend reunification services.

III. DISCUSSION

A. Applicable Standard of Review

We affirm the juvenile courts findings if supported by substantial evidence. (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398.) In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts findings must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] (In re N. S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)

B. Petitioner Did Not Substantially Comply With The Case Plan.

Section 366.21, subdivision (f) provides: At the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the . . . efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided, and shall make appropriate findings pursuant to subdivision (a) of Section 366.

If the juvenile court does not return the child to parental custody at the 12-month status review hearing, the court shall either: (1) continue the case for up to six months for a permanency review hearing ( 366.21, subd. (g)(1)); (2) order a section 366.26 hearing
( 366.21, subd. (g)(2)); or (3) order that the child remain in long-term foster care
( 366.21, subd. (g)(2)).

The court may continue the case to an 18-month review hearing only if it finds that there is a substantial probability that the child will be returned to [parental custody]
. . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . . ( 366.21, subd. (g)(1)(A).) To find a substantial probability of return, the court must find all of the following: (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [] (B) That the parent . . . has made significant progress in resolving problems that led to the childs removal from the home. [] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1)(A).)

This record contains ample evidence to support the juvenile courts finding that petitioner failed to substantially comply with his case plan. Although petitioner regularly visited Kyle, petitioner was late for each visit, threatened the social worker, spoke inappropriately about case issues and upset Kyle. As of the date of the section 366.26, subdivision (f) hearing petitioner had failed to complete the required parenting education class. Although there was evidence to the contrary, petitioner did not believe he suffered from mood swings. As a result, he refused to accept Dr. Groszs diagnosis of bipolar disorder. Although he had agreed to a fatty acids treatment, he refused to take the higher dosage recommended by Dr. Grosz. Although petitioner had been attending individual counseling sessions and had actively participated in the classes, the record reflects that petitioner failed to make substantial progress in the court-ordered treatment programs.

Among the problems which led to Kyles removal from petitioners custody was the fact that petitioner had caused Kyle to live in a dirty, cluttered bus containing dangerous chemical materials. As of the date of the hearing, petitioner was no longer living in the bus. However, he had not secured stable and safe housing.

We reject petitioners claim that there was a substantial probability Kyle would be returned to his custody by the time of an 18-month review. Kyle was removed from petitioners custody on October 13, 2005, and the contested section 366.26, subdivision (f) hearing was held on February 8, 2007. The 18-month outer limit for services was only two months away. Prior to Kyles detention, petitioner received 12 months of voluntary services. Following his detention petitioner received 16 months of reunification services. Nevertheless, petitioner has failed to benefit from the provision of services causing the juvenile court to conclude that the child could not be safely returned to petitioners custody by the time of the 18-month review. The conclusion is fully supported by the evidence.

IV. DISPOSITION

The juvenile court properly terminated petitioners reunification services and set a section 366.26 hearing. Accordingly, the order to show cause is discharged and the petition for writ of mandate is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_______________________, J.

CHAVEZ

We concur:

______________________, P. J. _______________________, J.

BOREN DOI TODD

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The police report noted that hydrogen gas is known to be odorless and nontoxic but may produce suffocation by diluting the concentration of oxygen in the surrounding air below levels necessary to support life.

^[3] DCFS reported that Kyle tried to choke a social worker from behind and stated he wanted to blow peoples head off. The summer prior to his detention Kyle was asked to leave two preschools due to aggressive behavior. In one incident, Kyle punched a child in the stomach causing her to vomit.