Filed 5/6/22 In re J.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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*

APPEAL from an order of the Superior Court of Kern County. Harry A. Staley, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

David H. (father) and Michelle K. (mother) are the parents of J.H. (born August 2018). Father and mother’s parental rights to J.H. were terminated pursuant to Welfare and Institutions Code section 366.26.[1] Father appeals the juvenile court’s order terminating his parental rights.[2] On appeal, he contends that if the order terminating mother’s parental rights is reversed on any substantive basis, then the order terminating his parental rights must also be reversed even if there is no independent error pertaining to him. We affirm.

FACTUAL AND PROCEDURAL HISTORY[3]

Petition and Detention

On September 26, 2019, the Kern County Department of Human Services (department) filed a petition pursuant to section 300, subdivision (b), alleging J.H. was at risk of harm due to mother and father’s willful or negligent failure to adequately supervise or protect him, and mother’s substance abuse problems. J.H. had come to the attention of the department as a result of a domestic violence incident between mother and father and was taken into protective custody and placed in a resource family approval (RFA) home.

The detention report indicated that on September 15, 2019, father choked mother during an argument and was arrested for spousal battery (Pen. Code, § 243, subd. (e)(1)). Although J.H. was present during the altercation, he did not witness it. Law enforcement officers offered mother an emergency protective order, but she declined.[4] Mother reported she and father had been in a relationship for approximately four years and had a history of unreported domestic violence. A second altercation occurred two days later in which father ran through the desert with J.H. in his arms while mother chased them. Father swung at mother while holding J.H. and claimed she pushed him and caused him to fall. J.H. was not injured. Mother denied pushing him.

On October 1, 2019, at the detention hearing, the juvenile court ordered J.H. detained and ordered father to participate in reunification services and supervised visits twice a week for two hours.

Jurisdiction and Disposition

The disposition report stated J.H. was placed at the paternal grandparent’s home. Father’s initial case plan required him to participate in counseling for parenting and child neglect and domestic violence. He was also ordered to submit to random, unannounced drug tests. At the time the disposition report was prepared, father had not enrolled in any counseling, or submitted to drug testing. He had been visiting J.H. regularly, except for when he was incarcerated from October 24, 2019, to November 7, 2019. The department recommended he be provided reunification services.

A supplemental report indicated father submitted to a drug test in November 2019 and tested positive for amphetamine and methamphetamine.

On February 11, 2020, at the disposition hearing, the juvenile court found that father’s progress toward alleviating or mitigating the causes necessitating placement had been none. He was ordered to continue participating in reunification services and supervised visits two times a week for two hours.

Six-month Review

The six-month status review report indicated father completed parenting counseling and was working toward completing domestic violence and substance abuse counseling. From February 2020 to July 2020, he was asked to submit to 16 random, unannounced drug tests. He tested negative eight times, failed to appear three times, was excused two times, tested positive for methamphetamine two times, and provided an inadequate specimen one time. [5] He visited J.H. four times a week for one hour each night. The visits were “productive with healthy interaction” and of “good quality.” Overall, he had made moderate progress in his case plan and the department recommended continuing reunification services.

A supplemental report revealed that in August 2020, father and mother rented a house together and then got into two separate altercations, violating an active restraining order preventing him from being near her. The department’s social worker told mother they both violated the restraining order because she was with him. Both domestic violence incidents were reported to law enforcement and father was ultimately arrested. After the altercations occurred, father reported he was leaving for Georgia. Additionally, father was asked to submit to six additional drug tests. He tested negative four times and failed to appear two times. The department noted that although the parents had made moderate progress in their respective case plans, they had not made sufficient progress to mitigate the circumstances that led to the children’s removal. Both parents failed to demonstrate they could abstain from using drugs and continued to engage in domestic violence. The department recommended terminating reunification services for both parents.

In December 2020, the department learned that mother was still in contact with father despite the active restraining order. The department’s social worker and mother’s family members convinced her to report the violation to law enforcement. When law enforcement officers arrived, mother showed them text messages father had sent her. However, one of the officers believed the text messages showed a two-way text exchange. Mother was sad about reporting him because she did not want to get him in trouble. The department was concerned with the parents’ inability to comply with the

10-year restraining order and maintain their sobriety. Although they had made moderate progress in their case plans, they had not made significant changes in their lives to warrant further services. The department recommended terminating reunification services for both parents.

On February 8, 2021, at the contested six-month review hearing, the juvenile court found that father’s progress toward alleviating or mitigating the causes necessitating placement of J.H. had been moderate, but that he had not made acceptable efforts and had not availed himself of the services provided to facilitate the return of J.H. to his care. The juvenile court terminated his reunification services and set a section 366.26 hearing.

Section 366.26 Report

The section 366.26 report indicated that after one year of living with relatives, J.H. was moved to a RFA home again due to the relatives’ inability to care for him on a

long-term basis. This was his third placement. J.H. was meeting all his developmental milestones.

Father had not visited J.H. consistently. Out of 125 possible in-person visits, father attended 45 visits. J.H. enjoyed spending time with him. At that point, J.H. had not lived with father in over 18 months and he had a “minimal bond” to him. J.H. looked to his caregivers to meet his daily physical and emotional needs. The department concluded it would not be detrimental to J.H. to terminate father’s parental rights so that he could be adopted. He was generally adoptable due to his young age and the lack of significant medical, developmental, or behavioral concerns. The department recommended terminating parental rights.

On August 31, 2021, at the contested section 366.26 hearing, the juvenile court found there was clear and convincing evidence J.H. was likely to be adopted. As for the parental-benefit exception, the juvenile court found as follows:

“The court does acknowledge that there is a level of a bond between the mother and the child—children—excuse me. And she has shown frequent loving contact and there’s an emotional bond that seems clear and that there’s some benefit to the children from her continued contact. [¶] … [¶]

“The court has to still balance the benefits of permanency, the detriment, if there is some detriment to breaking that bond through the termination of parental rights. But the court does find that that minimal detriment does not outweigh the benefits of permanency of adoption .…”

The juvenile court ordered parental rights terminated with a permanent plan of adoption.

On October 1, 2021, father filed a notice of appeal.

DISCUSSION

Father’s sole contention on appeal is that if the juvenile court’s order terminating mother’s parental rights is reversed on any substantive basis, then the order terminating his parental rights must also be reversed even if there is no independent error pertaining to him. He presents no substantive arguments challenging the order. Accordingly, our affirmance of the juvenile court’s order terminating mother’s parental rights to J.H. in case no. F083453 disposes of father’s appeal.

DISPOSITION

The juvenile court’s order terminating father’s parental rights is affirmed.

* Before Franson, Acting P. J., Smith, J. and DeSantos, J.

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

[2] Mother separately appealed the juvenile court’s order terminating her parental rights to J.H. and his half sibling, S.K., in case no. F083453.

[3] S.K. was part of the same dependency proceedings, but because he is not part of this appeal, we recite only the facts that are pertinent to J.H.

[4] Although mother declined an emergency protective order, she later obtained a 10-year no-contact order.

[5] Failure to submit to a drug test was presumed a positive test result.