Filed 8/17/17 Daniel H. v. Superior Court CA4/3

Received for posting 8/18/17

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceeding; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Petition denied.

Juvenile Defenders and Lawrence A. Aufill for Petitioner.

No appearance for Respondent.

Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Office of Harold LaFlamme and Tina Stevens for Real Party in Interest A.H.

* * *

INTRODUCTION

Daniel H. (Father) is the father of Adam H. (Adam), who was born in June 2015 and taken into protective custody the following month. By petition for writ of mandate, Father challenges the juvenile court’s order, made following a contested 18‑month review hearing, terminating his reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26 (further code references are to the Welfare and Institutions Code). That hearing is set for September 13, 2017.

The Orange County Social Services Agency (SSA) has filed opposition to Father’s writ petition. Counsel for Adam has joined in the arguments made by SSA. Adam’s mother, I.Z., (Mother) does not challenge the juvenile court’s order terminating her reunification services.

Father contends the juvenile court erred by finding (1) there was a substantial risk of detriment to return Adam to Father’s care and (2) Father was offered or provided reasonable reunification services. We conclude substantial evidence supported the juvenile court’s findings and therefore deny Father’s writ petition.

FACTS AND PROCEDURAL HISTORY

I. Detention

Adam tested positive for opiates when he was born. The juvenile dependency petition (the Petition), as ultimately amended and sustained, included allegations pursuant to section 300, subdivision (b) (failure to protect), that at the time Adam was born, he tested positive for morphine and suffered from multiple withdrawal symptoms, and Mother tested positive for morphine and amphetamine/methamphetamine. Mother had an unresolved problem with abusing substances that included heroin and methamphetamine. She admitted using heroin daily and using methamphetamine three days before giving birth. She had been using heroin for about five years and, a year earlier, had enrolled in but did not complete a drug treatment program. Mother had a criminal history that included arrests or convictions for possession of controlled substances, receiving stolen property, and petty theft.

The Petition alleged that Father was aware of Mother’s substance abuse and admitted to using methamphetamine with Mother three days before she gave birth to Adam. Father had an unresolved substance abuse problem that included using methamphetamine. He reported using methamphetamine twice weekly for the past two years and his longest period of sobriety was one month. Father did not believe he had a substance abuse problem. The Petition alleged that Father had a criminal history that included arrests or convictions for false identification to a peace officer, possession of a controlled substance, failure to appear, shoplifting, and petty theft. The Petition alleged that both Mother and Father are unable to provide Adam with a safe and stable home.

In July 2015, the juvenile court ordered Adam detained and vested custody with SSA. The court ordered SSA to provide reunification services and six hours of weekly monitored visitation for Mother.

II. Jurisdiction/Disposition

In the Jurisdiction/Disposition Report, dated August 4, 2015, SSA recommended sustaining the petition, declaring Adam to be a dependent child, and offering reunification services. Adam was placed in foster care.

The Jurisdiction/Disposition Report noted Mother had informed SSA that Father was Adam’s biological father, and Father had confirmed that to be the case. The allegations of severe neglect were substantiated. In a telephone conversation with the social worker, Father confirmed the allegations that Mother had an unresolved substance abuse problem and had used heroin and methamphetamine days before giving birth to Adam. Father also confirmed allegations that he knew of Mother’s substance abuse, that he abused methamphetamine twice a week, and that he had an unresolved substance abuse problem. Father confirmed the allegations of his criminal history and allegations that he and Mother were unable to provide Adam with a safe and stable home. Father told the social worker he had concerns about Mother using heroin while pregnant, but could not force her to stop and “was going to stay with her no matter what.”

SSA proposed a case plan for Father which included the objectives of staying sober and free from illegal drugs, complying with drug tests, and obtaining and maintaining a stable and suitable residence for himself and Adam. As part of the case plan, Father was to attend general counseling to address the allegations of the Petition, participate in a domestic violence program, and complete a parenting class, a drug treatment program, and a 12‑step program.

At the jurisdictional/dispositional hearing on August 4, 2015, the juvenile court sustained the allegations of the Petition, declared Adam to be a dependent child, removed custody from the parents and vested it with SSA, and ordered that both Mother and Father receive reunification services. The court approved the case plan with the additional element that Father be referred to a therapist. The court accepted SSA’s recommendation that both Mother and Father have twice‑weekly visits with Adam.

III. Six Month Review

SSA’s status review report dated February 9, 2016 (the 2/9/16 Report) recommended continuation of reunification services for both Father and Mother. The 2/9/16 Report described as “minimal” both Mother’s and Father’s cooperation with the case plan and efforts made toward alleviating or mitigating the causes necessitating court involvement. Adam remained with foster parents.

Other than completing a seven‑day detox program, Mother and Father generally delayed enrolling in services and intermittently participated in them. Mother missed most of her tests and tested positive for opiates when she did test. She admitted she was still using heroin. Father had been called for drug testing 21 times, out of which he had 17 negative tests and four missed tests. He reported a sobriety date of September 15, 2015. He turned in signed cards reflecting attendance at 12‑step meetings.

Mother and Father had been authorized six hours per week of supervised visitation. According to the 2/9/16 Report, they had frequently rescheduled visits, failed to show up, arrived late, and left early. Father attended more caretaking activities than did Mother.

Mother and Father continued to live together and wanted to reunify with Adam as a couple. Father was in the process of completing his divorce from the mother of another child.

SSA submitted an addendum report dated March 16, 2016 which changed the recommendation from continuing to terminating reunification services and scheduling a section 366.26 hearing. Mother and Father had completed a 12‑hour parenting education program but Father had tested positive for opiates three times in January and February. The caregivers reported that Mother appeared to be under the influence of drugs during monitored visits with Adam.

SSA submitted another addendum report dated April 19, 2016 (the 4/19/16 Report) changing the recommendation back to continuing reunification services. The changed recommendation appears to have been prompted by an in‑person meeting between the assigned social worker and Father on April 1. The 4/19/16 Report stated: “On April 1, 2016, [F]ather acknowledged that if [M]other does not begin making strides toward her sobriety, [F]ather will no longer reside with [M]other. [F]ather reported that his priority is reunifying with the child by the twelve‑month review hearing, and stated that he will continue to work diligently on his case plan activities and sobriety. [F]ather acknowledged that moving forward without [M]other will be difficult; however, he reiterated that reunifying with the child is his priority.” Father had obtained full‑time employment and participated in a support group to maintain sobriety, and since February 22 had consistently tested “clean” for drugs. Father told the social worker that the three prior positive tests for opiates were due to his frequent physical contacts with Mother, who was using opiates.

The 4/19/16 Report also stated that Mother and Father had “made strides” in participating in their case plan, remained enrolled in their programs, and visited Adam consistently. SSA recommended six more months of reunification services.

At the six‑month review hearing on April 19, 2016, the juvenile court approved a stipulation to extend reunification services for both Mother and Father. The court approved the case plan recommended by SSA and scheduled a 12‑month hearing for August 3, 2016.

IV. 12‑Month Review

SSA submitted a status review reported dated August 3, 2016 (the 8/3/16 Report) recommending termination of reunification services and setting a section 366.26 hearing. Although Mother and Father had made “strides toward their case plan and visitation,” they had used 12 months of family reunification services without overcoming the problems that had led to Adam’s initial removal.

According to the 8/3/16 Report, Mother had made “minimal progress” on her case plan and did not complete her case plan activities. She struggled to maintain her sobriety, missed most of her drug tests, and tested positive for opiates and/or amphetamines for the few tests she did complete. From April to July 2016, she enrolled in four different residential substance abuse treatment programs. She was kicked out of the first program after a few weeks because she still tested positive for opiates. She left the second program because the third program offered more services. She relapsed and left the third program after about a month, and she left the fourth after three days, saying “she was not finished using drugs.”

Mother had resided with Father before entering the first substance abuse program and after leaving the fourth program. Mother’s referral for counseling lapsed before she enrolled in a program, and a new referral was completed for her. Mother stopped attending a personal empowerment program after two sessions because, she said, she wanted to wait until she had finished some of her other case plan components. Mother did not produce signed attendance cards to substantiate her claim that she attended AA/NA meetings and worked the 12 steps.

During this period of supervision, Father made “moderate” progress on his case plan and had not completed his case plan activities. He had completed five sessions of individual counseling. He seemed to be maintaining his sobriety and, since discontinuing patch testing in March 2016, his urine tested consistently negative.

Father was enrolled in and attending the substance use disorder programs clinic and had been in Phase III of the clinic since June 30, 2016. Since March 16, 2016, Father had tested negative 25 times for all substances. He told the social worker that he had not been attending 12-step meetings because they were a “negative environment” for him. He continued to claim his sobriety date was September 15, 2015.

Father had a full‑time job. He was temporarily renting a bedroom. He planned to find another place to live before reunifying with Adam, but was having trouble doing so. Father had authorization for 12 hours per week of supervised visitation with Adam and during the reporting period had made an “an improvement in maintaining consistency with his visitation.”

SSA submitted an addendum report on September 7, 2016 making the same recommendation of terminating reunification services for both Mother and Father. Father had completed his outpatient drug treatment program on August 18 and was continuing with individual therapy. He told the social worker that he missed a drug test on August 13 because his visitation time with Adam conflicted with the time at which the testing site was open.

On September 7, 2016, the juvenile court made a finding that Adam could not be returned to the parents’ care, ordered family reunification services for Father only, terminated Mother’s reunification services, and calendared an 18‑month review hearing. On September 22, the court approved a case plan for Father that modified his counseling requirement to include individual therapy to address “self[-]sufficiency and issues of co‑dependency with [Mother].” His substance abuse services requirement was modified to include participation in an outpatient program.

V. 18‑Month Review Hearing

A. SSA Reports

A contested 18‑month review hearing was conducted on April 13 and May 8, 9, 11, 15, and 16, 2017. In connection with that hearing, SSA submitted an Interim Review Report on October 19, 2016, a Status Review Report on December 15, 2016, an Addendum Report #1 on January 25, 2017, an Addendum Report #2 on March 2, 2017, an Addendum Report #3 on March 23, 2017, an Addendum Report #4 on April 3, 2017, an Addendum Report #5 on April 13, 2017, and an Addendum Report #6 on May 2, 2017. All of the reports recommended terminating Father’s reunification services and scheduling a section 366.26 hearing. The juvenile court received all the SSA reports in evidence.

The SSA reports related the following facts and events from after September 12, 2016.

Father began a substance abuse after‑care program in September 2016. At the same time, his counselor reported discussing with Father his need to choose between Adam and his relationship with Mother. His counselor recommended that Father attend 12‑step meetings and obtain a sponsor. In February 2017, Father reported he was no longer attending the after‑care program due to conflicts with his work schedule. From September 2016 to April 2017, Father tested consistently negative for drugs. He participated in some 12-Step meetings, but not twice weekly as required by his case plan, and did not obtain a sponsor. He claimed he had met a couple of people at meetings he could call for support.

Father acknowledged he needed to obtain safe and suitable housing for himself and Adam. Father moved into a bedroom in a two‑bedroom apartment shared with another family, then later rented another bedroom in a different home. His bedroom was clean and free of clutter. He continued to have a full‑time job as a mechanic.

Initially, Father was given six hours per week of supervised visitation with Adam. On October 19, 2016, Father was given three hours per week of unmonitored visits (conditioned on his full participation in his case plan) and six hours per week of supervised visits. In December, 2016, the assigned social worker authorized Father to have three hours per week more of unmonitored visitation hours, but Father decided instead to convert three of his supervised hours to unmonitored. In February 2017, the assigned social worker authorized Father to have 10 hours per week of visitation, all of which were to be unmonitored. Mother was authorized once monthly, supervised visits.

Father’s visits with Adam went well overall: Father interacted appropriately with Adam and was attentive and affectionate toward him. The caretakers expressed concern that after the visits Adam was hungry, tired, dirty, and would not nap; Father did not follow the provided eating and napping schedule; and Father fed Adam snacks only and did not provide him meals.

Father continued to participate in individual therapy. His therapist reported he was showing progress, had insight and remorse for the removal of Adam, was taking responsibility for his removal, and did not need to attend a domestic violence program. The therapist agreed to work with Father on his “co-dependency and enmeshment” with Mother as an additional treatment goal. In October 2016, the therapist reported that Father had said that Mother had moved out of his home. The next month, the therapist stated she would ask Father to clarify whether Mother had moved out of his home and discuss with him ongoing concerns about his continuing relationship with her. On February 11, 2017, Father’s therapist reported she saw him weekly, he got a “gold star” for participation, and appeared sober. At about the same time, Father told the assigned social worker that as of March 15, 2017, he would be sober for one and a half years and that he had “terminated all bad relationships that would be bad for myself and for Adam.”

On March 13, 2017, Father’s therapist reported that she was not seeing Father anymore because his referral had expired. The therapist had not requested a referral extension because she thought all was well and Father would be getting Adam back. The therapist reported that, for the first three quarters of the time she had been treating him, Father had told her he was seeing Mother. In the last few months, however, Father had been telling the therapist that he did not know where Mother was and he did not see her. Father claimed he was not in a relationship with Mother because he knew he might not get Adam back if he were. The therapist was disappointed to learn there was recent documentation that Father was still seeing Mother.

On October 4, 2016, Father told the assigned social worker that Mother had moved out of his home and, although they spoke with each other, they no longer had an intimate relationship. On October 24, 2016, the foster parents reported that Father recently had Adam say hello to Mother on the telephone during a supervised visit. On October 29, 2016, the foster parents reported that when they picked up Adam from the supervised visitation center, Mother was present and talking to him, and Mother and Father left in the same vehicle. The foster parents also reported that at the November 1 and 7, 2016 visits, Father had large stacks of DVD movies to rent/return, which the foster parents believed showed that Mother was around.

On November 2, 2016, the assigned social worker told Father that she was concerned about his continuing relationship with Mother. The social worker explained that Father’s relationship with Mother would place Adam at risk of abuse or neglect if returned to Father because Mother had had her services terminated and had not been able to display a commitment to her sobriety. Father said he understood. He acknowledged he still saw Mother and had given her a ride the other day after a visit with Adam. On November 9, 2016, the social worker again explained to Father that his continued relationship with Mother was unsafe and inappropriate due to her continued drug use. Father stated his last contact with Mother was when he gave her a ride the prior week. He claimed they were not in a relationship and she had not lived with him for a month. Father and Mother had had a talk, and Father told her “either we get Adam back together or I would need to get him back and she could not be around us.” The social worker reported that Father “had difficulty displaying insight as to why his continued relationship with [M]other would not be healthy or safe for himself and the child.”

On December 28, 2016, the assigned social worker again reminded Father that Mother was not authorized any unmonitored time with Adam and that Father should not be involved with anyone who was actively using illegal substances. Father stated he did not know where Mother was and had not seen her in a while. As Father spoke, he seemed anxious or nervous and had difficulty maintaining eye contact with the social worker. On February 2, 2017, Father stated he had “terminated all bad relationships that would be bad for myself and for Adam.”

On February 23, 2017, the social worker received from a private investigator a surveillance log and photographs dated February 16, 17, and 18, 2017 documenting recent contacts between Father and Mother. The photographs showed Father and Mother in various places, e.g., leaving Father’s residence, walking around holding hands, shopping, and driving in Father’s vehicle.

On March 23, 2017, the maternal grandmother told the social worker it would be best if Adam stayed with his foster parents, who loved him and took good care of him. Mother had a drug problem and needed help. The maternal grandmother said that a few weeks earlier Mother had been living with Father in his apartment. The grandmother was not sure if Mother was still staying with Father, but knew they did see each other.

On April 3, 2017, the assigned social worker received from the private investigator another surveillance log with photographs, dated April 1, 2017, documenting recent contact between Father and Mother. The photographs showed them walking together and embracing, with Father’s hands in Mother’s back pockets, and Mother smiling and laying her head on Father’s chest.

On April 6, 2017, Father told the assigned social worker that he had not seen Mother since she moved in with the maternal grandfather. The social worker informed Father of the date‑stamped photographs of Father and Mother together on April 1, 2017. Father claimed that Mother was helping him move into his new apartment. The social worker asked Father if he understood SSA’s concerns about his continued relationship with Mother. Father responded by saying: “I guess you are worried that I would relapse if l am hanging out with [Mother] or you are worried that Adam would be removed if he was found with [Mother]. [She] and I have been through a lot together and she is my only friend. I know I will never relapse again. My relationship with [Mother] would have to come to an end if Adam came back with me. [Mother] never asks to see Adam or to visit with Adam. She wouldn’t come around if l have Adam back with me. I would be too busy spending time with Adam and working.”

The social worker told Father it was difficult to believe that Mother would disengage from Father and not ever ask to see Adam. Father acknowledged that, while it would be difficult never to see Mother, he had to do that to get Adam back. The social worked expressed concern about his judgment and his decisions to remain in an active relationship with someone who has an unresolved substance abuse history, was his “only friend,” and was the mother of his child. Father stated, “You don’t know how emotional this makes me feel. Every time after Court, this is so hard for me.”

Adam was now approaching age two and had been with his foster parents since he was two and a half months old. Adam was receiving excellent care from and thriving with his caregivers. He was strongly bonded to the foster parents, wanted to be close to them, sought them out for comfort and reassurance, and laughed and played with them. The foster parents were willing to adopt Adam if Father did not reunify with him.

B. Testimony at 18‑Month Review Hearing

Father and the assigned social worker (Stacy Breffle) testified at the 18‑month review hearing.

1. Father’s Testimony

Father testified he no longer had a drug or alcohol problem and had been sober since September 15, 2015. He believed his few positive drug patch tests afterward were from sexual contact with Mother. He had never used opiates, Mother’s drug of choice. He had participated in AA meetings at least twice a week though he had not provided more recent verification to his social worker.

Father participated in the substance abuse outpatient program until his work schedule posed a conflict. He had completed his counseling, and the social worker had not referred him to additional counseling. He and his therapist worked on “the root” of his problem in using drugs. Father told his therapist he was no longer in an intimate relationship with Mother, which was true at that time, but they were friends. At their last session, a month or two prior, he had told his therapist he wanted to help Mother enroll in a drug treatment program. Father had seen the surveillance reports and photographs, including the one in which he and Mother appeared intimate, but denied they had engaged in any sexual activity. He acknowledged that in the photographs he and Mother appeared to be in a romantic relationship (“we hold hands and stuff”) and admitted he had spent the night with Mother “a couple times.”

Father testified he told his therapist when he was having contact with Mother. He claimed the therapist told him not to tell his social worker about his contacts with Mother because SSA was “out to get [him] any way they could.”

Father admitted he lied to his social worker about his relationship with Mother. The social worker had told him it would be unsafe or unhealthy for him to maintain a relationship with someone who abuses illegal substances. Father knew he was not supposed to have any contact with Mother and that continuing a relationship with her would jeopardize his chance for reunifying with Adam. He believed his case plan forbade him from having contact with Mother only if she was using. He continued a relationship with Mother because she was mostly sober with a couple of relapses, the last of which was around March 2017. He was not around her when she relapsed. He could tell when she was under the influence. The last time that Father confronted Mother about using drugs, she admitted it, and he asked her to leave his home.

Father testified that Mother was now “clean” and in a program. He sees her a few times a week, and once or twice a month she spends the night with him so he can take her to the Caltrans station. She was not living with him, even if she stayed for a week straight. They had last lived together perhaps nine months earlier. Father admitted that Mother posed a risk to Adam if she were to relapse, which she sometimes did, and knew he could not be in a relationship with her if he wanted to reunify with Adam.

Nevertheless, Father did not believe having contact with Mother was a concern because his relationship with her was separate from his relationship with Adam. His treatment program and AA had taught him that to maintain his sobriety he needed to support other addicts who were trying to get clean, and Father was just trying to help and support Mother. He also learned in his treatment program not to be around people who were using and that people he knew while he was using could be triggers and bad for his sobriety. Father did not believe Mother was a trigger and his contact with her would not cause him to relapse.

Father had been in love with Mother in the past, was still in love with her when she was sober, and wanted to have an ongoing relationship with her if she got clean. Father denied ever allowing Adam to have contact with Mother during visitation. When he and Mother had attended supervised visits together, they had sometimes left together in the same vehicle.

Father described his history of drug abuse, which started when he was about 20 years old. In 2013 he started using methamphetamine and became an addict. He lost a couple jobs, his car, his home, and his relationship with his older children. He started shoplifting, went to jail, and was living on the street with Mother. He had since changed his life. He had been clean for nearly two years, was progressing in life, and had a good job, a car, and consistent contact with his older children. He believed he could be a father and was prepared to take care of Adam.

Father’s triggers for drug use were excitement, sadness, or women. Mother was not a trigger; Father had had a relationship with her for his past 20 months of sobriety and he had not used or wanted to use.

Father testified that if Adam were returned to him, he would have no problem informing the social worker if Mother tried to make contact with him. Father admitted his testimony in that respect was inconsistent with his earlier failure to inform the social worker about his contact with Mother. He was willing to undergo more counseling to address concerns about his relationship with Mother, participate in a substance abuse support group, and comply with all court orders regarding Adam and his care.

2. Breffle’s Testimony

Breffle testified she had been the social worker assigned to the case since August 2016. Mother’s reunification services had been terminated because Mother did not submit to drug testing, did not participate in counseling, and did not provide evidence of attending 12‑step meetings. Father was in compliance with his case plan except he had not completed the after‑care program and did not consistently participate in twice‑weekly 12‑step meetings. Father had told Breffle that he wanted to “focus on being employed and going to work every day” and was frustrated with the time required for the after-care program. Breffle believed the after‑care program was an important relapse prevention tool and Father’s failure to participate in it placed him at greater risk of relapsing.

Breffle testified the reason SSA was recommending against returning Adam to Father was Father’s relationship with Mother, who continued to have an unresolved substance abuse problem. Although Father had tested clean “for quite a while,” his choice to continue his relationship with Mother cast doubt on his commitment to sobriety and placed Adam in danger. Breffle testified that returning Adam to Father while Mother “was in the picture” would be a danger and create the possibility of further abuse and neglect because “it would be hard to believe that they would not reunite as a family or that she would not at least be at the home, and he has to work full time.”

Breffle also expressed concern that Father had concealed and lied about his relationship with Mother. One of the goals of therapy for Father was to address his relationship with Mother and the safety issues presented by that relationship. Breffle discussed with Father her concerns over Mother’s unresolved substance abuse history, but Father did not appear to have any insight that continuing a relationship with Mother could expose Adam to possible neglect or abuse if Adam were returned to Father. Father sometimes claimed he did not know where Mother was and said he wanted to put Adam first and not continue to see her. Early in the period of supervision, Father had said he and Mother talked to each other but he did not want to jeopardize his chance of getting Adam back. Father claimed that he and Mother were just friends, they saw each other very seldomly, and they only had telephone contact. Father’s therapist had reported that Father said he no longer was in a relationship with Mother, which, the surveillance photographs showed, was false. Father never told Breffle in 2017 that Mother was residing with him for a one-week period or was spending the night at his home.

Only after Breffle confronted Father with the surveillance photographs did he admit that he and Mother were in a romantic relationship. After receiving the photographs, Breffle did not refer Father to additional counseling to address his relationship with Mother because Father had already been provided two rounds of individual counseling, ending in February 2017. At the time Father’s therapist terminated counseling, Father was telling her he was not involved with Mother. The therapist believed she saw much insight and progress on Father’s part, and did not request another referral. When Breffle informed Father’s therapist of the surveillance photographs, the therapist expressed disappointment and concern over Father’s insight.

Breffle testified that substance abusing parents who succeed in reunifying with their children and do not reenter the dependency system tend to be those who both move away from their peers and family members still using drugs and who develop a new support system of people who do not engage in substance abuse. Those who relapse tend to relapse with their peers and people they knew in the past. Father’s failure to acknowledge this insight and lack of a support system were significant to Breffle’s recommendation.

Breffle did not believe Father had developed a support system. He recently said that Mother was his “only friend.” The maternal grandmother was not a support system for him because she had reported that Mother was abusing substances and spending the night occasionally with Father. The maternal grandmother believed the child should stay with his foster parents.

Breffle testified that, although Father appeared clean at the time, he did not appear “sober” because a sober person, in addition to testing clean, obtains a natural support system and a sponsor to contact if triggers arise that create the risk of relapse. Sober also means ridding yourself of things that or people in your life who are connected to your history of substance abuse, which for Father would be Mother and her continued substance abuse. Also, Breffle believed that Father’s lying to SSA and his therapist showed he was not sober.

Breffle did not have concerns about the quality of interaction between Father and Adam during visits. Aside from Father’s contact with Mother, Breffle had no concerns about Father’s ability to be a parent. Breffle was concerned that, if reunified, Adam would be left with Mother in Father’s home while Father was at work.

C. Juvenile Court’s Ruling

The juvenile court found by a preponderance of the evidence that returning Adam to the physical custody of the parents would create a substantial risk of detriment to Adam’s safety, protection, or physical or emotional well‑being, and found by clear and convincing evidence that reasonable services had been offered. The court concluded that Father’s “toxic relationship” with Mother, a heroin addict, meant that reunification would pose a risk of harm to Adam and threaten Father’s sobriety. The court found that Father’s credibility was “lost” due to Father’s attempts to conceal his ongoing contacts and relationship with Mother. The court, disbelieving Father’s testimony that he was not in a romantic relationship with Mother, found “t is clear to the court that he is still in love with [Mother] and wants her in his life.”

Section 366.22 requires the juvenile court to return the child at a permanency review hearing, held within 18 months after the date the child was removed from parental custody, unless the court finds by a preponderance of the evidence that return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) A parent’s failure to participate regularly and make substantive progress in court‑ordered treatment programs is prima facie evidence that return would be detrimental. ([i]Ibid.; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).)

At an 18‑month review hearing, the juvenile court must consider the parent’s compliance with the reunification plan; however, plan compliance is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) “The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child’s out‑of‑home placement.” (Yvonne W., supra, 165 Cal.App.4th at p. 1400.) “[W]hile the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency (§ 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)

We review for substantial evidence the trial court’s finding that Adam would be at substantial risk of detriment if returned to Father’s custody. (Yvonne W., supra, 165 Cal.App.4th at pp. 1400‑1401.) Under the substantial evidence test, we determine “whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged.” (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) “In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court’s order.” (Yvonne W., supra, 165 Cal.App.4th at p. 1401.)

Substantial evidence supported the juvenile court’s finding that returning Adam to Father’s physical custody would create a substantial risk of detriment to Adam’s safety, protection, or physical or emotional well‑being. Adam was detained because he tested positive for morphine at birth, Mother had an unresolved problem abusing substances including heroin and methamphetamine, Father knew of Mother’s unresolved substance abuse problem, and Father had an unresolved problem abusing substances including methamphetamine.

Substantial evidence supported a finding that, as of the time of the 18‑month review hearing, Mother abused drugs or, if clean, periodically relapsed. Mother had not resolved, or even attempted to resolve, her issues that brought Adam into the juvenile dependency system, and her reunification services had been terminated.

Substantial evidence supported the juvenile court’s findings that Father had an ongoing romantic relationship with Mother, was not willing to end it, and would not cease contact with her if Adam were returned to him. As the juvenile court found, Father had an “addiction” to Mother. The reports prepared for the 18‑month review hearing showed that Father and Mother lived together until October 2016 and afterward continued to have contact with each other. In November 2016, Father told the social worker he still saw Mother but claimed they did not have an intimate relationship. Breffle explained to Father on several occasions that his continued relationship with Mother was unsafe and inappropriate and that he should avoid contact with anybody who uses drugs.

The surveillance photographs, which were taken on February 16, 17, and 18 and April 1, 2017, showed Father and Mother together in various places acting romantically. Father testified he had been in love with Mother in the past and was still in love with her when she was sober. Father wanted to have an ongoing relationship with Mother if she got clean. He testified that he and Mother were not in an intimate relationship, but the juvenile court disbelieved him. The court expressly found that “[h]is credibility in this regard is lost.” Indeed, the evidence established that Father concealed his relationship with Mother from SSA and from his therapist. His therapist said that Father had repeatedly assured her that he was no longer seeing or in a relationship with Mother. Father testified he lied to his therapist about his relationship with Mother. Father lied to Breffle about not having seen Mother, and backtracked when confronted with the surveillance photographs.

The evidence of Father’s lies about, and concealment of, his relationship with Mother not only justified the court’s finding that Father had no credibility, but also demonstrated the intensity of his feelings toward her and lack of insight into the problem. We agree with SSA that Father seems not to have progressed past the state of his relationship with Mother when Adam was brought into protective custody. At that time, Father said of Mother, “[w]hen she wants to use, I can’t say no . . . I can’t control her. I can’t let her go because someone else will help her use.” He said at that time he was going to stay with Mother “no matter what.”

Substantial evidence supported the finding that Father’s relationship with Mother placed Adam at substantial risk of detriment. If Father had contact with Mother, Mother likely would have contact with Adam. If Father maintained a romantic and intimate relationship with Mother, then Mother almost certainly would have substantial contact with Adam. Because Mother continued to abuse drugs, or periodically relapsed from sobriety, it would be detrimental for Adam to have any contact with her. Father testified that Mother posed a risk to Adam because “if she were to relapse and continue to use, . . . anything could happen that could jeopardized Adam’s safety.”

Just as importantly, Father’s relationship with Mother increased the risk that Father, who had successfully maintained his sobriety, would relapse. Breffle testified that substance abusing parents who succeed in reunifying with their children tend to be those who move away from peers and family members who are still using drugs. She explained that those who relapse tend to do so with drug users they knew in the past. Father was advised by AA not to be in relationships with drug abusing companions and was advised in the after‑care program to stop seeing Mother, whose drug use was a cause of Father’s drug use. Early in the dependency proceedings, Father told the assigned social worker: “Everytime [sic] [Mother] got heroin, she would get methamphetamine too. I would tell her not to, and when she did, I would use it.” Continuing a relationship with his intimate partner with whom he had abused drugs, and whom he considered his “only friend,” made Father prone to relapse.

Father did comply with most requirements of his case plan; he had stopped using, had found housing, had full‑time employment, and his visits with Adam were appropriate. The juvenile court congratulated Father on his case plan compliance and progress toward sobriety, and found that Father’s failure to follow through on the after‑care program and to attend 12‑step meetings “do not appear to be critical flaws in his rehabilitation progress.” However, as the court recognized, Father’s ongoing relationship with Mother, lack of insight into the problem with having that relationship, and dishonesty about it, meant that Father had not taken sufficient steps toward eliminating the conditions that led to Adam’s removal.

II. Father Was Offered Reasonable Reunification Services

The juvenile court found by clear and convincing evidence that reasonable services had been provided or offered to Father and Mother. Father contends that finding was in error because he was not referred to additional counseling after the surveillance photographs showed he had been lying about his relationship with Mother.

Whenever a child is removed from a parent’s custody, the juvenile court must order provision of child welfare services to the parent deemed eligible for reunification services. (§ 361.5, subd. (a).) Section 361.5 requires a good faith effort to provide reasonable services “‘specifically tailored to fit the circumstances of each family’” and “‘designed to eliminate those conditions which led to the juvenile court’s jurisdictional finding.’” (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472, 1474.)

The juvenile court’s finding that reasonable reunification services had been offered or provided is reviewed under the substantial evidence standard. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) A finding by the juvenile court that reasonable services have been provided must be made on clear and convincing evidence. (Ibid.) “‘When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact.’” (Ibid.)

“n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances.” ([i]Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

Father’s challenge to the reasonableness of services focuses on testimony by Breffle that she did not offer him referrals for services to address his relationship with Mother after Breffle obtained the surveillance photographs. But Father had been offered referrals for counseling and therapy in the first case plan. In September 2016, Father’s case plan was modified to include individual therapy specifically to address “issues of co‑dependency with [Mother].” For months thereafter, Father concealed and lied about his ongoing relationship with Mother, thereby preventing SSA from undertaking any action or offering him more services to address the problem. Father told his therapist in October 2016 that Mother had moved out of Father’s home, and the next month his therapist reported that she would discuss with Father concerns over his relationship with Mother. In February 2017, Father’s therapist reported that Father “swore up and down” that he had no contact with Mother. Father has not shown how additional counseling would have resolved the problem; indeed, even at trial Father testified he was still in love with Mother when she was sober. We conclude substantial evidence supported the finding that reasonable services had been provided or offered to Father.

DISPOSITION

The petition for writ of mandate is denied.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.