Filed 8/17/22 Curtis F. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Christie Canales Norris, Judge.

Steven L. Bynum for Petitioner.

No appearance for Respondent.

Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Curtis F. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)),[1] terminating reunification services and setting a section 366.26 hearing on September 20, 2022, as to his now three-year-old son, S.V., and 23-month-old daughter, M.V. Curtis contends the juvenile court erred in not returning the children to his custody. We deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

Dependency proceedings were initiated in May 2020 when then 11-month-old S.V. ingested methamphetamine while in the custody of his mother, Alyssa V. (mother). Mother had a significant history of drug use and noncompliance with drug treatment. Curtis and mother were legally married but she did not identify him as S.V.’s father. S.V. was removed from mother’s custody and placed with his maternal grandmother (grandmother) in Thousand Oaks. Grandmother also had custody of Curtis and mother’s then 14‑year-old son, Michael F. In August 2020, mother gave birth to M.V.

In September 2020, the juvenile court denied mother reunification services as to S.V. and set a section 366.26 hearing for January 2021. Meanwhile, in December 2020, mother died.

The Kern County Department of Human Services (department) took M.V. into protective custody on December 21, 2020, and filed a dependency petition alleging she came within the juvenile court’s jurisdiction under section 300, subdivision (g) because she was left without support and there were no relatives willing or able to care for her. Curtis was listed as M.V’s alleged father. He acknowledged not being M.V.’s biological father but claimed parental rights through his marriage to mother. M.V. was placed with grandmother and her siblings immediately upon her removal.

Curtis appeared at the section 366.26 hearing in January 2021. The juvenile court declared him S.V.’s presumed father, ordered paternity testing and continued the hearing to February 24, 2021. Paternity testing eliminated Curtis as S.V.’s biological father.

On February 23, 2021, the department filed a first amended dependency petition on M.V.’s behalf, alleging there was a substantial risk she would be sexually abused by Curtis based on his history with Michael. Specifically, the petition alleged under section 300, subdivision (d) (sexual abuse) that Curtis intentionally touched Michael’s genitals or intimate parts or the clothing covering them for the purposes of sexual arousal or gratification. The allegation stemmed from an incident in January 2011 when then four-year-old Michael reported to grandmother after a weekend visit with Curtis that Curtis touched his own “ ‘do do’ ” until it stood up and then touched Michael’s “ ‘do do’ ” until it also stood up. He also said Curtis hit him in the head with his “ ‘do do.’ ” Curtis denied ever touching his son’s penis. However, the allegation was substantiated. The petition further alleged under section 300, subdivision (j) (abuse of sibling) that the juvenile court sustained allegations in September 2006 that Curtis and mother operated a methamphetamine lab in their home and exposed then three-month-old Michael to poisonous chemicals, flammable solvents, and caustic acids. After they failed to reunify with him, Michael was placed in a legal guardianship with grandmother.

On February 24, 2021, the juvenile court set a section 366.26 hearing for April 13, 2021, as to S.V. and a continued jurisdictional/dispositional hearing for March 3, 2021, for M.V.

Curtis sought extraordinary writ relief from the juvenile court’s setting order as to S.V., contending the juvenile court failed to conduct a paternity inquiry pursuant to section 361.2, which delayed identifying him as a presumed father and assessing him for custody and reunification services. We stayed the section 366.26 hearing and issued an opinion in June 2021, granting the petition and directing the juvenile court to conduct a new dispositional hearing. (C.F. v. Superior Court (June 18, 2021, F082451) [nonpub.opn.].)

Meanwhile, on April 19, 2021, the juvenile court declared Curtis to be M.V.’s presumed father. On June 22, 2021, the juvenile court vacated the section 366.26 hearing as to S.V.

On October 19, 2021, the juvenile court adjudged M.V. a dependent child as alleged in the first amended petition and ordered a reunification plan for Curtis as to both children. The plan required Curtis to participate in domestic violence and sexual abuse counseling as a perpetrator, submit to random drug testing and visit the children twice weekly for two hours under supervision. A six-month review hearing was scheduled for April 19, 2022. The hearing was continued and conducted on May 24, 2022.

Prior to the hearing, Curtis completed a 26-week sexual abuse as a perpetrator program and reportedly made good progress, tested negative for drugs, and regularly visited the children. However, he was resistant to participating in a domestic violence class. He denied engaging in domestic violence with mother or his ex‑girlfriend, L.V., and said he did not agree to being a perpetrator of domestic violence. He claimed he did not know he had to enroll in a domestic violence course as a perpetrator, even though the social worker reviewed his case plan with him monthly. In February 2022, Curtis said he enrolled in a domestic violence class through Los Angeles County but did not know the name of the class. In March, he said he completed eight weeks of an online domestic violence course, which was only approved in Nevada. On April 4, he enrolled in a 26‑week domestic violence class. The department recommended the juvenile court terminate reunification services because of his failure to comply.

Social worker Jennifer Aldaco testified Curtis sometimes had trouble managing both children during visitation. She never saw him physically abuse the children or act inappropriately with them. Nor did she observe any behavioral change as a result of the classes he was taking. For example, he did not admit to the sexual abuse or domestic violence or express any insight into what he learned. He did not take responsibility for his part in the children’s removal and blamed others instead. He was, however, cooperative with the department.

Gary Hailey, a retired sheriff’s deputy and mentor to Curtis, testified he knew Curtis for about a year and would have no concerns with him watching any children. Curtis told him he was taking classes to better himself and learn from his mistakes. He remembered Curtis saying he engaged in domestic violence and needed to better himself. Curtis also admitted committing sexual abuse but did not say who the victim was. Hailey did not ask for any details.

John Fleming, Jr., a retired police officer, also testified for Curtis. He had known Curtis for about a year and a half through church. Curtis told him about a domestic violence incident with his ex-girlfriend but Fleming did not remember him admitting any guilt. Curtis did discuss learning to control himself and listening. He had been with Curtis at church and outside of church and never saw him behave in any way that caused him concern. Curtis never discussed sexually assaulting a minor.

Curtis testified he completed a domestic violence class but it was not court approved. He learned domestic violence could take many forms. He did not believe the restraining order L.V. obtained protecting herself from him was for domestic violence. The restraining order was dismissed and he and L.V. were no longer in a relationship. The only behavior he could think of that might constitute domestic violence occurred with his brothers growing up.

Curtis learned about maintaining boundaries with children in his sexual abuse class. He now realized that playing around in the bathroom while naked, which is what happened with Michael, was inappropriate. He explained he and Michael were taking a shower and playing rough and his “thing” might have hit Michael. He did not believe it was appropriate for him to take a shower with Michael. He did not believe he neglected M.V. and disagreed that he had difficulty managing both children during visitation.

Curtis’s attorney asked the juvenile court to release the children to him with family maintenance services, arguing there were no allegations against Curtis in the petition sustained in S.V.’s case and there were no allegations regarding domestic violence against Curtis in the first amended petition as to M.V. In addition, Curtis completed his sexual abuse class as a perpetrator, there were no reports of inappropriate behavior in the 12 years since the incident with Michael and those around him had no concerns about him being around children.

The juvenile court found the department provided Curtis reasonable reunification services but he did not participate regularly and make substantive progress. The court further found the children would be at a substantial risk of detriment if they were placed in his care and there was not a substantial probability they could be returned to his custody within six months if services were continued. The court terminated reunification services and set a section 366.26 hearing.

In ruling, the juvenile court found Aldaco credible in her concern about Curtis’s inability to maintain control over the children and failure to take responsibility for the prior domestic violence with mother and L.V. and the removal of the children. The court gave little weight to Hailey and Fleming’s testimony because they appeared to have a superficial relationship with Curtis. When Curtis tried to articulate what he learned about domestic violence, the court stated, he testified, “domestic violence can be sexual, it can be money, and referred to his restraining order, but beyond that could not articulate with any certainty, clarity or specificity what he has learned and did not show any insight.” He similarly was unable to “articulate with any clarity, certainty and specificity other than what is appropriate and not appropriate” when testifying about what he learned regarding sexual abuse. Curtis continued to deny the allegations that led to the children’s dependency. He did not appreciate or understand why the children were removed and was dismissive of the circumstances that led to their removal.

The juvenile court recognized that Curtis had completed a lot of classes and drug tested. However, Curtis lacked “any insight [into] what he[] gained in those classes, any changes in his belief of how his actions have affected others, how those actions put his children at risk. So, for those reasons, the court will follow the recommendations of the social worker.”

DISCUSSION

There is a statutory presumption at the periodic review hearings that the juvenile court will return the child to parental custody unless it finds by a preponderance of the evidence that the child’s return would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. Prima facie evidence of detriment can be found in the parent’s failure to participate regularly and make substantive progress in court-ordered treatment programs. (§ 366.21, subd. (e)(1).) Ultimately, however, the court’s decision hinges on whether the child would be safe in the parent’s care. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141–1142.) We review the court’s substantial risk of detriment finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

Curtis contends the juvenile court erred in finding it would be detrimental to return the children to him because he participated regularly in his case plan and regularly visited the children. The juvenile court, however, found Curtis did not regularly participate in his services plan and the record supports its finding. Curtis’s services plan required him to participate in domestic violence counseling, which he resisted until early April 2022, approximately seven weeks before the review hearing. On that evidence alone, the court could find prima facie evidence of detriment.

Further, the question of detriment encompasses much more than a parent’s technical compliance with the requirements of a case plan. As Curtis aptly points out, “Evidence that a parent has fully complied with the case plan does not create a presumption that the child should be returned to parental custody. It is only one fact among many for the court to consider.”

Here, the juvenile court drew from Curtis’s testimony that he lacked insight into the reasons the children were removed from his custody, the dynamics of domestic violence and sexual abuse and how his behavior impacted his children. The court could reasonably infer that his lack of insight placed the children at risk of physical or emotional harm if placed in his custody. Thus, we conclude substantial evidence supports the court’s detriment finding.

Alternatively, Curtis appears to argue the juvenile court should have continued reunification services for him given his compliance with his case plan requirements and substantial progress in meeting its objectives. He fails, however, to develop the argument by citing any legal authority to support his contention. Such contentions are deemed to have been abandoned and we are not required to consider them. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119–1120.) Even so, we would find no error.

Curtis’s argument for continuing reunification services is that the juvenile court erred in finding there was not a substantial probability the children could be returned to his custody following another period of reunification services. Section 366.21, subdivision (g)(1)(A)–(C) sets forth three factors to determine whether there may be a substantial probability of return: (1) the parent has consistently and regularly contacted and visited the child; (2) the parent has made significant progress in resolving the problems that led to child’s removal; and (3) the parent demonstrated the capacity and ability to complete the treatment plan objectives and to provide for the child’s safety, protection, physical and emotional well-being, and special needs. The juvenile court is not limited to the provisions of section 366.21, subdivision (g)(1) at the six-month review hearing but may consider any relevant evidence in making its finding. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 181.)

Curtis’s failure to gain any insight into his behavior and the reasons for the children’s removal supports the juvenile court’s determination that he had not made sufficient progress in resolving the underlying problems or demonstrated the ability to safely parent the children. Thus, substantial evidence supports the court’s determination there was not a substantial probability of return. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).

* Before Poochigian, Acting P. J., Detjen, J. and DeSantos, J.

[1] Statutory references are to the Welfare and Institutions Code.