In re J.P.
Filed 7/11/13 In re J.P. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re J.P.,
a Person Coming Under the Juvenile Court Law.
JOSE G.,
Plaintiff and Appellant,
v.
SUPERIOR
COURT,
Defendant and Respondent,
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU,
Real Party in
Interest.
A138432
(Contra
Costa County
Super. Ct.
No. J10-01433)
Petitioner Jose G.
(Jose) is the father of minor J.P., who was removed from the care of mother
Michelle P. (Michelle) due to neglect.
Jose, who was not married to Michelle and never had custody of his son,
sought to have J.P. placed in his care.
The juvenile court ordered the Contra
Costa County Children and Family Services Bureau (Bureau) to provide
reunification services to Jose. After
over two years of services, the Bureau recommended that J.P. be placed with his
father under a family maintenance plan.
On April 11, 2013, rejecting the Bureau’s recommendation, the juvenile
court terminated services to Jose, and scheduled a hearing under Welfare and
Institutions Code section 366.26
name="_ftnref1" title="">[1]
to consider a permanent plan and termination of parental rights.
Jose now petitions
for extraordinary writ relief. Opposition has been filed on J.P.’s
behalf. We conclude substantial evidence
supports the juvenile court’s finding that placing J.P. in Jose’s care would
create a substantial risk of detriment to J.P.’s safety and well-being. We therefore deny the petition.
On October 1,
2010, police responded to an apartment where Michelle lived with her adult son
Mario and six-year-old J.P.
name="_ftnref3" title="">[3] Michelle and Mario had been involved in an
altercation, and the incident resulted in Michelle’s hospitalization on a
section 5150 hold. Michelle was supposed
to be receiving treatment for mental health problems, but she had not been
taking her medications and her behavior had become increasingly bizarre. At the time of the 5150 hold, she had alcohol
and methamphetamines in her system.
Michelle was released later that same day.
A social worker
made an unannounced visit at Michelle’s apartment six days after her 5150 hold
and found her in a state of dishevelment.
J.P. was absent from school that day (apparently a common occurrence),
and when asked about his whereabouts, Michelle first lied that he was at school
and then that he was at a friend’s house.
After the social worker called the sheriff’s department for officer
assistance, Michelle admitted that J.P. was sleeping inside the apartment and
allowed the social worker and deputies to enter. The apartment had a “very strong negative
odor†and the carpet was “heavily stained,†“sticky,†and “disgusting.†Wet toilet paper and rags littered the
bathroom floor and the hallway outside the bathroom. There were dirty dishes, rotten food, empty
bottles, and other trash strewn about. A
broken ceramic pot was scattered on the living room floor. J.P. was sleeping on a bed in the corner of
the living room.
Michelle told
the social worker that she stopped taking her medications because she ran out,
but one of the deputies found two bottles in a drawer. Michelle acknowledged methamphetamine use,
although she denied having a problem and claimed she could stop using at any
time.
Mario was home
at the time and told the social worker that J.P. needed to get out of there,
suggesting that he go live with his aunt.
After Mario helped J.P. get dressed, J.P. was taken into temporary
custody and placed in foster case. As he
was leaving, Michelle told him that it was his fault he was being taken away
because he had broken the pot that was in pieces on the living room floor.
The day after
J.P.’s removal, the social worker spoke with J.P.’s other adult brother,
Orlando, who wanted to be considered a temporary relative placement until J.P.
could be placed with his aunt. Orlando
provided insight into Michelle’s mental health problems, advising that her
diagnosis was schizophrenia. She had
been drinking more and more lately, and her behavior was out of control because
her medication did not mix with alcohol.
The social
worker also contacted Jose, who claimed that, up until a month prior, he was
seeing J.P. on a regular basis. He had
never lived with, nor had he ever been married to, Michelle, and he purportedly
knew nothing about her mental health issues or alcohol and drug abuse. Although there was no court ordered child
support, he claimed he gave Michelle money to help out. Jose denied having any substance abuse issues
of his own, and said that he lived with his wife and their three children, who
were 13, five, and two years old.
name="_ftnref4" title="">[4]
Section 300 Petition and Detention
On October 12, 2010, the
Bureau filed a section 300 petition alleging that Michelle failed to protect
J.P. within the meaning of section (b) because she had mental health, drug, and
alcohol problems that inhibited her ability to protect and parent him. The petition identified Jose as the alleged
father. The juvenile court ordered J.P. detained the following day.
At a November
18, 2010 hearing, Jose made his first appearance, and the court ordered paternity
testing.
On November 29,
2010, the court sustained the allegations in the petition and took jurisdiction
over J.P. It also appointed Orlando as
J.P.’s educational representative, and continued the matter to January 3, 2011
for disposition.
In the Bureau’s
disposition report, the social worker described J.P. as a “sweet, energetic
little boy who enjoys playing and interacting with others.†He would sometimes get frustrated when he did
not remember or understand things, which would make him angry. J.P. was in kindergarten, and it was
suspected that he had some learning delays.
The social worker was seeking to have him formally assessed, but in the
meanwhile, he was receiving speech services.
According to
the social worker, J.P. told her that he was afraid of Laura, his father’s
partner, because while visiting his dad on one occasion, Laura had choked him
because she thought he broke her window.
As to Jose, the
social worked advised he had two prior arrests—one in 2002, the other in
2003—for possession of drugs for sale, with one conviction. Jose admitted only one prior arrest, claiming
that at the time he was living in a home where drugs were being sold and
denying that he was involved in the criminal activity or that he was convicted
of any crime. Jose also claimed that his
only history of drug use was trying marijuana years ago. This conflicted with Michelle’s
representation that she used methamphetamines with Jose, as well as a claim by
one of Michelle’s sons that he had seen Jose give Michelle drugs on more than
one occasion.
Jose advised
the social worker that he and Laura would like to have J.P. placed in their
care, and the Bureau was conducting an assessment to determine the
appropriateness of placing J.P. with his father. The social worker was concerned about the
appropriateness of such a placement, however, because of Jose’s failure to
adequately monitor the care J.P. had been receiving from his mother, Jose’s own
history of possible drug use, and concerns about the relationship between J.P.
and Laura. The social worker noted that
Orlando had also expressed an interest in caring for J.P., but he did not have
a suitable living arrangement at that time.
The Bureau
recommended family reunification services for Michelle, with services for Jose
as well if he elevated his paternity status to presumed. It also submitted proposed case plans for
both parents.
At a January 3,
2011 dispositional hearing, the court ordered reunification services for
Michelle, acknowledged Jose as J.P.’s alleged father, and continued the matter
to June 20 for a six-month review hearing.
A paternity
test subsequently confirmed that Jose was J.P.’s biological father, and his
status was raised to presumed father.
On March 28,
2011, Jose filed a section 388 request, seeking to change the court’s
out-of-home placement order. As the
nonoffending parent, Jose requested that J.P. be placed with him under family
maintenance while he worked to complete his case plan. The court scheduled a
hearing on Jose’s section 388 request for April 18, 2011, which hearing date
was ultimately continued to May 25 for a contested hearing.
Following the
contested hearing, the court denied Jose’s section 388 request but adopted the case
plan for him. It required him to stay
sober and show his ability to live free from drugs and alcohol; submit to
random drug testing; meet J.P.’s physical, emotional, medical, and educational
needs; cooperate with the social worker; successfully complete a parenting
class; and demonstrate that he would not permit others to physically abuse
J.P. The court maintained the status
review date of June 20, 2011.
In a six-month
status review report, the Bureau updated the court on J.P.’s well‑being. J.P. had undergone a neurodevelopmental
evaluation, which resulted in a diagnosis of attention deficit hyperactivity
disorder (ADHD), inattentive type. It
was recommended that J.P. be prescribed a neurostimulant, although his foster
mother felt she was able to manage his behavior at home without
medication. An occupational therapy
evaluation showed significant impairment in J.P.’s ability to complete paper
and pencil tasks with control and ability, and resulted in a diagnosis of
developmental coordination disorder, with a recommendation that he receive
occupational therapy. J.P. had also been
diagnosed with a generalized anxiety disorder and was participating in
psychotherapy. His therapist was working
with him to identify and verbalize his feelings.
J.P. also had
academic delays, with below average scores in reading, writing, and math. It was expected that an assessment of J.P.’s
eligibility for special education would occur in the fall.
J.P. remained
in the same placement he had been since his October 2010 detention, and it was
going well. He had developed a close
bond with his foster mother and felt safe with her.
As to
Michelle’s status, the Bureau advised that she continued to suffer from mental
health problems and was sporadic in her visits.
When she did visit, she failed to recognize appropriate boundaries with
J.P. and was often psychotic in her behavior.
While it was difficult to know whether her issues were due to mental
health issues, substance abuse, or both, her circumstances had not improved
since J.P.’s removal, making his return to her care unsafe at that time.
Jose, on the
other hand, had been fairly consistent in his visits. He often brought his other three children
with him, and they enjoyed playing with J.P.
Initially, Jose was minimal in his interactions with J.P., which was
possibly attributable to a language barrier.
Jose had become more engaged with his son and was developing a parental
bond. Likewise, J.P. was becoming
increasingly enthusiastic about visits with his father.
Despite Jose’s
progress, the Bureau still had many of the same concerns about placing J.P.
with him, concerns that, according to the Bureau, Jose failed to acknowledge or
understand. Despite having tested
positive for methamphetamine (in May 2011), as well Michelle’s statement that
she has used drugs with him and two arrests and a conviction for possession of
narcotics, Jose continued to deny ever having used drugs. He also had not acknowledged J.P.’s fear of
Laura, or addressed it with J.P. The
Bureau recommended that reunification services be extended for both Michelle
and Jose, with the social worker concluding as follows: “This worker has tried to help [Jose]
recognize that J.P. needs more from him as a parent than the basics he is used
to providing; transporting to and from school, taking him to the park,
etc. It remains to be seen whether
[Jose] will be able to meet J.P.’s distinct developmental, educational, and
emotional needs.â€
At a six-month
review hearing on June 20, the court continued reunification services for six
months and set a 12-month review hearing for December 5, 2011.
On October 20,
2011, the Bureau filed an ex parte application requesting authority to approve
up to thirty consecutive overnight visits for Jose. According to the social worker, both J.P. and
Jose were requesting overnight visits, they were doing very well in their
family therapy sessions, and their therapist was supportive of overnights.
compliant with his case plan, participating in random drug testing with
negative results since May 26 and actively participating in a substance abuse
treatment program. The court granted the
request.
12-Month Status Review
In a 12-month status
review report prepared in November 2011, the Bureau recommended that the court
continue services to Jose but terminate them as to Michelle. While Michelle was not drug testing nor
participating in a substance abuse treatment plan, Jose remained compliant with
his case plan. He and J.P. were also participating in family therapy, the
sessions were going well, and Jose was engaging in positive ways with his son.
The Bureau
advised the court that J.P. was doing well in his foster home and had begun
overnight visits with his father in October.
Earlier in November, however, the Bureau had received information that
Jose hit his younger children and used inappropriate words toward his oldest
child. The Bureau opened an
investigation and suspended J.P.’s overnight visits. J.P. had recently reported that he liked
being with his father and half-siblings and that he got along with Laura and
was not afraid of her, but it was unclear from the Bureau’s report whether J.P.
had expressed those sentiments before or after the Bureau opened its
investigation.
J.P. was
otherwise doing well. He had started on
medications for his ADHD but experienced negative side effects. His pediatrician suspected that he may have
bipolar disorder and depression, rather than ADHD, so he was being referred for
psychological and psychiatric evaluations.
He was eligible for special education services due to an auditory
processing learning disorder, and he was participating in individual and family
therapy.
The 12-month status
review hearing did not take place on December 5 as scheduled, and was continued
first to January 12, 2012, and then to February 27.
In a memorandum
prepared prior to the February 27 hearing, the Bureau advised the court that
J.P. was continuing to have weekly unsupervised visits with his father, but did
not want overnight visits, so there had been none since November 2011. Jose had completed his substance abuse
treatment program, was continuing to attend 12‑step meetings, and was
participating in random drug testing with negative results. He was no longer participating in family
therapy, however. According to the
therapist, he was not committed to the process and exhibited a lack of priority
when it came to therapy, possibly due to cognitive deficits that were affecting
his ability to benefit from the therapy.
At the February
27 hearing, the court continued the matter to March 5 for a contested
hearing.
In its status
report for the March 5 hearing, the Bureau advised the court that J.P. was
doing well in his foster placement and continued to have weekly visits with his
father, although he still did not want overnight visits. J.P. indicated that he did not want to live
with his father, because he did not feel safe with him and Laura. He expressed a desire to live with his older
brother Orlando, who also desired to care for J.P., but did not have a suitable
living arrangement.
The Bureau
further advised the court that although family therapy had been terminated in
January, Jose otherwise remained in compliance with his case plan. Nevertheless, it did not believe that
placement of J.P. with Jose was safe. It
expressed a concern that Jose had some cognitive delays that might interfere
with his ability to, and understanding of how to, parent J.P. In the Bureau’s opinion, Jose did not fully
understand that J.P. was a child with special needs who required specialized
services. The Bureau thus recommended
terminating reunification services to Jose and continuing J.P. in foster care
with a goal of permanent placement.
A contested
hearing was held on March 5, at the conclusion of which the court terminated
family reunification services for Michelle.
As to Jose, however, the court did not follow the Bureau’s
recommendation, instead extending reunification services for him. It then continued the matter to April 5, 2012
for an 18-month review hearing.
Status Review
On March 29, 2012, licensed clinical
social worker Marynella Woods submitted a report to J.P.’s counsel advising, as
pertinent here: “At your request I
conducted another home visit and assessment of your eight year old client,
[J.P.] Prior to your request, I received
a phone call from the foster mother, Lydia [S.], stating that she was concerned
about the deplorable condition of [J.P.’s] clothes when he returned from visits
with his father. As you know, for some
time now [J.P.] has not wanted to visit with his father, much less live with
him. He had complained that his father
was cruel to the family pets, and physically abusive to the other children in
his home. The social worker reportedly
investigated the situation and decided that [J.P.’s] allegations were
unfounded, so the visits have continued.
[The social worker] also commented that part of the problem is that
[J.P.] is ‘too attached to the foster mother.’
Frankly, I find this comment to be disturbing because what we hope for
with these kids is that they can attach
in a healthy way. The fact that [J.P.]
is attached to Ms. [S.] is a good thing, and has certainly been a catalyst for
the progress he has made thus far. . . . [I]f the Department is planning on making any
moves for this child, the father is not an appropriate placement. [J.P.] is simply too emotionally vulnerable,
and even with the gains that he has made, still has a long way to go.†Wood recommended a slow and progressive
transition to Orlando’s home.
The court held
a contested hearing on May 14, 2012.
Following the hearing, the court found extraordinary circumstances,
ordered another six months of reunification services for Jose, and continued
the matter to August 13, 2012 for a 24‑month review. It also ordered Jose to attend parenting
classes, and approved increased visitation during the summer.
Prior to the
August 13 hearing, the Bureau filed a status memo advising the court that Jose
and Laura had completed parenting classes and continued to want J.P. to live
with them. J.P. was still having weekend
visits.
The social
worker also advised that she attempted to increase overnight visits, but these
visits were not supported by J.P.’s counsel or his foster mother. According to the foster mother, J.P. was
tearful at the prospect of being with his father, and she expressed concern
about the quality of care J.P. received while at his father’s home, including
worries about hygiene and the cleanliness of the house. J.P. had told her that his father does not
let him brush his teeth or take showers.
The social worker spoke with Jose, however, who stated that J.P. did
bathe when he was there, and that Jose and Laura made sure he and his clothes
were clean. The social worker noted that
she had visited Jose’s home and found it clean and comfortable.
The August 13
hearing was continued to August 20 and again to October 29, 2012. Prior to the October 29 hearing, the Bureau
submitted a status report recommending that J.P. be placed with his father with
a family maintenance plan and that Orlando be released as J.P.’s educational
representative.
The Bureau
advised that J.P. was doing well in his foster home and that his basic needs
were being met. He was receiving special
education services and twice-weekly tutoring, and his process in school was
satisfactory. He was only taking
Benadryl, his foster mother having stopped the psychotropic medications when
she noticed he was having memory problems and was very slow to respond.
According to
the Bureau, J.P. was able to meet his personal care needs with assistance and
reminders, although he was easily distracted and had problems staying focused. He continued to participate in psychiatric
services that included medication monitoring and individual therapy. The Bureau quoted J.P.’s therapist as noting
that although the “foster mother has become very attached to J.P. and has been
a strong advocate for him, it is difficult to determine how much she influences
what he is thinking and feeling, particularly in regard to his relationship
with his biological father. J.P. has
made great progress under her care and she should be applauded for her efforts. However, the therapist is always aware that
he must carefully weigh what J.P. says with the filter of how much is this
influenced by the foster mother.â€
Jose remained
in compliance with his case plan, consistently testing negative for drugs, and
Jose and Laura had completed a parenting program. According to Jose, J.P.’s siblings loved
being with J.P., and they all wanted him to live with them.
Concerning
visitation, the Bureau noted that J.P had regular unsupervised visits with his
father and recently had an extended weekend visit as well as a seven-day
visit. The social worker visited J.P.
during each visit, and observed him to be very comfortable with his family and
laughing and playing with his siblings.
J.P. related having had a good time during each visit, and did not
express any fear or discomfort.
The Bureau
concluded with this assessment: “[J.P.]
has done well in his current placement.
His extended visits with his father have gone well. The father and his wife made the effort to
take [J.P.] to his sport activities and ensured he kept his appointments. [J.P.] indicated to this worker that he had a
nice time with his family and he did appear to be comfortable in their
presence. [¶] [Jose] remained
consistent with his interactions with [J.P.]
He completed all that the Bureau and the Court asked of him. He has consistently drug tested negative
since June 13, 2011. He participates in
the educational meetings for [J.P.] and is open to do whatever is needed to
have his son with him permanently.†With
that, the Bureau recommended that J.P. be placed in his father’s care under a
family maintenance plan. It also
requested that Orlando be released as J.P.’s educational representative.
In an undated
caregiver information form (but apparently submitted in advance of the October
29 hearing), J.P.’s foster mother advised the court that J.P. “gets very angry
and emotional each and every weekend when he has to go with his dad. Says he will run away, he cries, yells.†An attachment described multiple complaints
or incidents that purportedly occurred between May and October 2012,
including: J.P. came home from a visit
and complained that his father threw him into the water even though J.P. was
still learning how to swim; J.P. reported that his father and half brother
swore extensively; J.P. complained that he hates sleeping at his father’s
because all four children had to sleep in the same room and he often had to
share a bed with his young half brother; J.P. reported that his father and half
siblings often spoke derogatively about his foster mother; J.P. told his foster
mother that his father held cockfights in the backyard; J.P. cried at a
doctor’s appointment because his father had not recognized J.P. in the hallway
until J.P. was standing right in front of him, raising concerns about Jose’s
eyesight and the safety of him driving J.P. in a car; J.P had a nightmare about
Laura putting her hands around his neck; J.P. cried because his young half
brother told him their father said he would shoot Orlando if he got custody of
J.P.; and after a visit, J.P. told Orlando that his father “smacked him on the
head†because he let one of their dogs lick him on the face.
Also attached
to the caregiver form was a letter from J.P.’s pediatrician, who described her
interaction with J.P. at a recent appointment, as follows: “He was very emotional during the visit and
cried readily. He and his foster mom
shared with me that he had actually seen his biological father at the clinic
that day. His father actually did not recognize
him when he saw J.P. I asked J.P. how he
felt about living with his father and his family. He told me that he did not want to live with
biological father. Upon further
questioning, he said that his step-mother tried to choke him. I tried to ask more about this incident but
J.P. did not want to discuss it further.â€
At the October
29 review hearing, counsel for J.P. contested the Bureau’s recommendation, and
the matter was set for a contested hearing.
On November 14,
2012, J.P.’s foster mother, Lydia, filed a de facto parent request, which the
court granted on January 7, 2013.
A contested
hearing took place over the course of three days, February 13, March 14, and
April 11, 2013. J.P. was the first to
testify. He expressed concerns about
living with his father because his father frequently used swear words, often
yelling “bitches†at his half-siblings, and he would hold, as J.P. called them,
“chicken fights†in the backyard where upwards of 30 people would come and
place bets. When asked if anyone in the
house hit him, J.P. said that his father did on one occasion when he was
petting one of the family dogs. J.P.
also did not like his father’s house because the kitchen and bathroom were
infested with cockroaches. According to
J.P., Jose never requires him to shower and, in fact, sometimes prevents him
from doing so. If he had his choice,
J.P. would live with Orlando.
J.P.
acknowledged that he had been visiting his father frequently lately, including
regular Saturday and Sunday visits and overnights. When asked if they had been going well, J.P.
responded, “Kind of.†As to what he did
when visiting his father, J.P. testified he watched television, played outside,
went to the park, and walked the dog.
J.P. also
testified that even though his father’s house has four bedrooms, he shared a
bed with his 14-year-old half sister.
the same room as Jose and Laura, and the remaining two rooms were vacant.
When asked
about the incident when Laura purportedly choked him, J.P. testified that he
did not remember it ever happening, nor did he remember telling his
pediatrician about it. He answered “noâ€
when asked if he was afraid of Laura, but stated that he was “sometimes†afraid
of his father, because he hit him on the head one time when J.P. was petting
his dog in a cage, which Jose did not like.
J.P. described another time when his father hit him on his hand when one
of the dogs licked his face.
Jose was the
next witness to testify. In response to
questioning, he was unable to identify what grade J.P. was in, the name of his
teacher or pediatrician, the names of his medications, or his medical
diagnoses.
Jose
acknowledged having had four chickens at one point, but testified that he had
given them away on the orders of the city because they crowed early in the
morning.
similar event.
Concerning his
prior conviction for possession of drugs for sale, Jose claimed that he had
been living with people who were selling drugs but he got blamed for it. He spoke up about it, and the police later
found out who really did it. And he
claimed he was previously unaware of his positive drug test “because I don’t
use drugs.â€
Jose testified
that he and Laura had completed two parenting classes in which they learned how
to talk to and educate children. He had
also been participating in random drug testing pursuant to which he submitted
to tests every week or two, all of which had come back negative.
Jose denied
that he had ever hit J.P., claiming that whenever J.P. needed disciplining, he
just gave him a “talking to.†When asked
what sort of bad things J.P. had done, Jose described a recent incident when
J.P. put a knife to his younger half sister’s head. Another time, J.P. hit another child hard
with a ball. Jose never told the social
worker about either incident. Jose also
denied knowing what “the B word†is.
Jose affirmed
that he and Laura both wanted J.P. to come live with him. He was paying $25 in child support each week,
and he understood the payments would stop if J.P. lived with him.
Concerning the
sleeping arrangements, Jose confirmed that J.P. slept in the same room as his
teenage half sister. When asked why he
did not sleep in his own room, Jose explained that he previously had the two
spare bedrooms rented out, and he was looking for new tenants.
When asked
about the cockroaches, Jose admitted “there are some but not too many.†He had “put a lot of bombs and all that†in
attempts to exterminate them.
As to J.P.’s
hygiene, Jose explained that he would tell J.P. to shower, but he often arrived
with tattoos and “painted hair,†which he did not want to shower off. According to Jose, J.P.’s foster mother was
the one who told him not to shower at his father’s house because the tattoos
and paint would wash off.
Jose understood
that J.P. was having learning problems and that he was also in need of therapy.
Barbara Crespo,
who had been the social worker assigned to J.P.’s case since September 2011,
then testified. She was aware of Jose’s
one positive drug test, as a result of which he attended an outpatient
substance abuse program, 12‑step meetings, and random drug testing. Crespo acknowledged that family therapy was
stopped in January 2012 due to Jose’s lack of participation and issues of
possible cognitive deficits that affected his ability to benefit from
therapy. She also acknowledged that,
according to the therapist, Jose exhibited a lack of priority when it came to
therapy and he was not committed to the process.
Crespo
testified that she had explained J.P.’s diagnoses to Jose, but that he did not
appear to understand what they were. He
did, however, describe behaviors in J.P. that were consistent with his
diagnoses.
Crespo had not
heard about the knife incident prior to that day. Jose had told her, however, that J.P. was
acting out towards his siblings and was hitting them.
Crespo
estimated that she had visited Jose’s home five times in 2012. Whenever J.P. was there for an extended
visit—typically, seven consecutive days—she had made a point of visiting when
Jose was going to be there with J.P. She
also visited him at his father’s house right before Christmas, and she visited
on two additional Saturdays. Although
she had personally observed the presence of cockroaches, she had no concerns
about the general cleanliness of Jose’s house.
When she did the initial home assessment, Jose showed her the bedroom
where the children slept, and there were three beds in it. She was not aware that J.P. and his teenage
half sister were sharing a bed. At the
time of the initial assessment, the family had one dog and some chickens. During later visits, the chickens were gone
and they had more dogs, although none appeared vicious.
When she did
the initial assessment, Crespo interviewed all adults who lived in the home,
including one of Jose’s tenants. She was
going to do a background check on the tenant, but he passed away before it was
completed. Crespo did not believe that
her initial home assessment reported to the court that there were other adults
living in the home.
According to
Crespo, Jose had participated in three meetings concerning J.P.’s school
learning plan. He had a general
understanding that J.P. has cognitive delays, although she suspected he did not
understand the severity and the long-term effect of it. Laura had also attended the meetings, and she
seemed to comprehend the issues better.
Crespo also suspected that Jose did not fully understand J.P.’s
emotional issues. The Bureau’s
recommendation that J.P. be turned over to Jose’s care with a plan for family
preservation services would include months of family therapy in the home to
help the whole family adjust to the new living arrangement.
When asked if
the foster mother understood J.P.’s educational needs, Crespo responded that
she and the foster mother had different opinions about J.P.’s academic
needs. The foster mother (as well as
J.P.’s brother Orlando) wanted him to be in a smaller educational setting, while
Crespo believed J.P. was doing well where he was. It was not, in her opinion, a matter of
changing the school environment as much as it was finding a way for him to
retain the information he was learning.
When asked if
she had an opinion as to where J.P. felt safer, Crespo responded: “I know what he said to me. He stated that he feels better with Lydia or
his brother. I also know what he’s told
the psychiatrist. But bottom line,
[Jose] hasn’t given up on his son. He
stuck it out all this time. He is a
non-offending parent. And it doesn’t
seem—kind of like, I really need to give him the opportunity to be the parent
that he can be, him and his wife working together to bring this child into
their family and make the family whole, but I know that [J.P.] does not want to
be with his father.â€
Laura, Jose’s
partner, was the next to testify. She
and Jose had been together for 16 years, although they never married. They had three children together, who were
four, seven, and 15 years old at the time of the hearing. Other than the two parents, three children,
and J.P. on most weekends, no one else lived in the house.
Laura testified
that there were times when she was home with J.P. and she found him difficult
to direct, particularly on the first day of a visit. After the first day, he typically behaved
better. She described a recent incident
during a surprise birthday celebration for J.P. when he exhibited a bad
attitude toward her, smearing her with cake.
They had spent a lot of time preparing for the party so J.P. would have
a good time, and his behavior reduced her to tears.
Laura was aware
that J.P. participated in therapy because he had difficulty remembering things
and, as she put it, “he has a bit of trouble with his character.†She also acknowledged that J.P. had
misbehaved towards his younger brother recently, and she was concerned about
his behavior towards her children. When
asked if she thought she would treat J.P. differently from her three children
if he was placed in their home, she answered, “There has never been a
difference. I don’t know why there would
be one afterwards.†She was not aware
that if J.P. were returned to their home, someone would come three to five
times a week to help integrate J.P. into the family. Testimony then concluded for the day.
When testimony
resumed nearly a month later, Crespo was recalled to the stand. Since the previous court session, Crespo and
counsel for J.P. spoke about J.P. having an extended visit with his father,
which they agreed would be a good opportunity to see how J.P. would react. A week-long visit was scheduled to correspond
to J.P.’s spring break, but on the day the visit was set to begin, Laura called
Crespo and advised that one of her young children was very sick and they were
on the way to the emergency room. Since
no one would be home to greet J.P., the visit was canceled, and it ended up
being reduced to a single overnight visit.
Counsel for
J.P. examined Crespo about a visit report prepared at the request of J.P.’s
counsel. In the report, an investigator
stated that she found the living room furnished but dirty; the kitchen in
complete disarray, with food, unwashed dishes, and cooking utensils piled on
every available surface; bedrooms filthy with little furniture and piles of clothes,
toys, and personal items strewn about a bathroom that was also filthy and
strewn with towels and other personal items.
Crespo testified that that was inconsistent with how she had ever found
the home, on both announced and unannounced visits.
J.P.’s counsel
asked Crespo if she had considered Jose’s lack of understanding of J.P.’s needs
in making her recommendation that he be placed in his father’s home. She did not think he was incapable of
understanding J.P.’s needs, and that they had spoken about the services that
J.P. was receiving and would continue to receive. As to whether she had considered any negative
impact on J.P. in transferring him from the foster home where he was then
living, Crespo testified that she did not see a negative impact other than that
he did not want to be there. She did
concede, however, he would be affected by breaking the bond he shared with his
foster mother, and it would be destabilizing to separate him from Lydia, just
as it would be for any child. That was
why, she added, the family would receive services to help with the transition.
Counsel for the
Bureau then questioned Crespo on the portion of the report describing the
condition of the house. According to
Crespo, Jose called her the Monday after the investigator’s Saturday
visit. He told her a person had shown up
and wanted to take J.P. for a walk, which he would not allow because he does
not let his children walk off with strangers.
He did let the woman in the house, explaining to her that the home had just
been fumigated, which was why belongings were moved around and piled on top of
each other.
Counsel then
asked Crespo about the minimum standard of care for parents. She testified that the parent needs to meet
the child’s basic needs. As far as housekeeping
goes, it means a safe home where the child is not in danger, does not have
access to chemicals, and has a bed; there is a minimum of three days of food in
the refrigerator; and there is hot and cold running water and working toilets.
Crespo also testified
that she believed the foster mother was reluctant to allow J.P. to reunify with
Jose. Crespo explained that when that is
the case, the Bureau would typically move the child to another placement. According to Crespo, that was not done here
because Lydia was very good when it came to managing J.P.’s doctor’s and
therapy appointments, and Crespo wanted to maintain that for J.P. And once Lydia became the de facto parent,
Crespo felt she was unable to move J.P.
Lydia was the
final witness to testify. She had been
J.P.’s caretaker for over two and a half years.
When he first came to live with her, J.P. had no medications, no
eyeglasses, and was not potty trained.
He was subsequently diagnosed with
insomnia. Since that point, he had
been prescribed approximately five different psychotropic medications, all of
which Lydia tried but ultimately stopped because of his reaction to them. At the time of the hearing, J.P. was only
taking Benadryl to help him sleep, Albuterol for asthma, and Claritin for
allergies. He would shortly be starting
a new psychotropic medication to help him focus and pay more attention.
Lydia testified
that she had been attending all of J.P.’s educational meetings. Because J.P. was behind academically, he had
tutoring twice a week at home, and she also read to him or gave him extra
homework.
As to his
visits with his father, J.P. has told Lydia that he did not feel safe. When asked about J.P.’s particular concerns,
Lydia related that the house was unclean, Jose’s friends came over and they
hung around outside drinking, and nobody cooked for him. After visits, J.P. would return to her house
and be very quiet, telling her about the things that happened during the
visits, such as he slept in a dirty bed, he could not sleep in his bed because
it was piled with clothes, and he was not given enough food to eat.
Concerning
hygiene matters, Lydia described how J.P. loved to take showers, brush his
teeth, and wash his face. When he
returned from his father’s house, he was often wearing the same clothes he had
worn over there, which were by then very dirty, and he was unbathed.
Lydia also
testified that in June 2012, J.P. told her about a cockfight he witnessed at
his father’s house. Lydia also testified
that J.P. told her about being attacked by a pit bull outside his father’s
house, although when J.P. testified, he did not recall the incident.
Jose was
recalled to the stand to answer questions about the investigator visit that had
occurred since his original testimony.
According to Jose, the investigator arrived unannounced on a Saturday
when Jose was home alone with J.P. and his younger half brother. Jose testified that the night before the
visit, the house had been sprayed for cockroaches, and the family had not yet
returned all of their belongings to their rightful places.
Closing
arguments began with counsel for J.P. arguing that he would be detrimentally
affected if the court followed the Bureau’s recommendation. He would lose the security he had in Lydia’s
home, and in turn he would be placed in a home where he did not feel safe. Counsel further argued that the Bureau’s
recommendation was financially motivated because it would no longer have to pay
for his foster care.
Counsel for
Jose argued that while there was testimony J.P. did not feel safe at his
father’s house, he never identified concrete examples of what made him feel
unsafe. Counsel noted that while the
case was still in family reunification, Lydia was advising that she wanted to
adopt J.P., which was premature at that point.
Because of her bias, counsel opined that J.P. was being coached to say
he did not like it at Jose’s house, giving only examples of uncorroborated incidents
such as the cockfights and people hanging around in the backyard drinking. He concluded with this: “[T]he father has done everything he’s been
required to do under the [family reunification] plan. He deserves a chance, an opportunity, I think
Ms. Crespo said it herself, to show that he can parent this child. If he can’t—and we’re not talking about a
dismissal. If he can’t, then the
[Bureau] will come back in and [J.P.], I have no doubt, will be removed and
probably put back with [Lydia]. [¶] But
this is really jumping the gun because the caretaker wants to adopt him. And she’s done a good job for him, but we’re
not at that point yet in this case. And
so I think policy of the law favors reunification. And to allow the caretaker to step in and say,
‘Well, I can be a better parent. Let’s
forget reunification even if the parent has done everything he can to reunify,’
I think that should not be condoned.â€
Counsel for the
Bureau argued last, contending that the care J.P. was receiving in the foster
home, as argued by counsel for J.P., was irrelevant to the question before the
court, which was whether there was detriment to J.P. in placing him in Jose’s
home. As counsel put it, under section
366.22, the court was “required to return the child to the custody of the
parent unless it determined by a preponderance of the evidence that the return
of the child would create a substantial risk of detriment to the child’s
physical or emotional well being. . . . The standard for showing detriment is fairly
high one. It cannot mean merely that the
parent in question is less than ideal, did not benefit from reunification
services as mentioned . . ., seems less capable than any available
foster parent or other family member.
Rather, the risk of detriment must be substantial such as returning a
child to parental custody represents a danger to the child’s well being or
physical or emotional well being.â€
Counsel noted
that Jose had appeared in the case from the very beginning seeking custody of
J.P. and had “done his case plan. He has
done everything that the Department has asked of him. He has tested negative for 18 months. He has had the child in his home. He does not treat the child differently than
his other children.†And she reiterated
that if J.P. were placed with his father, the Bureau would provide family
preservation services to assist with the transition. J.P. also had additional support in place, as
he has access to his brothers and a mentor with whom he had an ongoing
relationship.
Following argument,
the court terminated reunification services to Jose, offering the following
rationale:
“I think there
has been a showing by more than preponderance of the evidence that return—not
even return—to place J.P. with the father at this time would create a
substantial risk of detriment to his emotional well being.
“I have gone
back—I have reviewed the documents that I have stated on the record. I have gone back and reviewed the testimony
on the prior dates. I note that the
father when he testified he didn’t know what grade J.P. was in, he didn’t know
the name of his teacher. He didn’t know
why J.P. needed the medication he was taking or even what the specific
medication was. He didn’t know who the
doctor is. He had absolutely no
comprehension of any academic challenges or emotional needs that he can
describe to the court.
“Furthermore,
and I don’t think it’s all that insignificant, is when you look at this case
and you have to take each case as they come, this child has been through a
really horrific childhood and [Jose] was not much part of that childhood. And the part that he was, according to
statements of the older brother, were not very good parts of the childhood
including supplying and participating in ingesting drugs with the mother in
this case.
“And I went
back and I was a little bit surprised, but in March of 2012, it was actually
recommend[ed] that services to dad be terminated. And Commissioner Houghton overruled that and
ordered no [sic] more services. And then you come back in October and now
it’s the recommendation that [J.P.] be removed from the caretaker and placed
with father, for the first time in his life to live with his father and there
has absolutely been no change in circumstances since the March recommendation
and the October recommendation.
“The father
still doesn’t grasp the issues. He
denies that he has ever used or participated in drugs. He’s been convicted of trafficking in drugs
and tested positive, and he states he doesn’t know why he possibly could have
tested positive to those drugs. He has
shown absolutely no insight into his own issues, let alone this child’s issues.
“And the fact
that they don’t even speak the same language is just—given this big picture
before this Court, I’m not sure why [Lydia] has become the villain in
this. Because there is no evidence
before this Court that she has done anything to sabotage any of these
relationships, period. Everyone can
surmise that these are statements of [J.P.] that she is reporting. These are not her statements. And the fact that she has been an active
advocate on his behalf, I think she should be applauded for that and not made
to be someone who is developing a relationship that never existed between
[J.P.] and his father.
“The Court
hopes that there will be a positive relationship at some point between [J.P.]
and his father, but the Court does not believe there is one now such that the
court would be willing to place [J.P.] for the first time in his life with a
dad given the issues that [J.P.] presents.
And this is not about who’s the better caretaker. It’s about this boy who appears in this
courtroom with all of his issues.
“So I cannot go
along with the recommendation in this case for the reasons that I have
stated. And it has nothing to do with
cockroaches, and it has nothing to do with taking showers at caretaker’s home
and putting deodorant on. Those are
great things, but that’s not what the Court is looking at. I’m looking at the emotional well being of
this little person in the courtroom.â€
With that, the court
set the matter for a section 366.26 hearing on August 8, 2013.
On April 17,
Jose filed a timely notice of intent to file writ petition. Opposition to Jose’s petition was filed on
behalf of J.P. The Bureau took no
position.
DISCUSSION
Section 366.22,
subdivision (a) provides that at periodic review hearings, “the court shall
order the return of the child to the physical custody of his or her parent or
legal guardian unless the court finds, by a preponderance of the evidence, that
the return of the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child.†In
reaching its decision, the court “shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to which he
or she availed himself or herself of the services provided.†(Ibid.)
In announcing
its decision, the juvenile court here found that placing J.P. in Jose’s care
would create a substantial risk of detriment to his emotional well-being. We review the court’s findings for
substantial evidence (Jennifer A. v.
Superior Court (2004) 117 Cal.App.4th 1322, 1326), and we conclude
substantial evidence supported the court’s order terminating reunification
services to Jose.
J.P. was a
vulnerable child with many special needs.
He had been diagnosed with ADHD and general anxiety disorder, although
his therapist suspected he had bipolar disorder and depression. He took medications for various ailments,
including Albuteral for asthma, Claritin for allergies, and Benadryl to help
him sleep at night. More significantly
perhaps, J.P. had tried multiple psychotropic medications to treat his
psychiatric disorders, but had experienced negative side effects. It was expected that he would be trying
another psychotropic medication in the near future. Despite these significant health concerns,
Jose could not identify J.P.’s various diagnoses, nor did he know what
medications he took or the names of his doctors. And, according to Crespo, when she explained
the diagnoses to Jose, he did not appear to understand.
J.P. also
needed various forms of therapy to help him cope with his numerous issues. Despite this, family therapy had been
terminated because Jose was uncommitted to the process and failed to make it a
priority, evidencing a lack understanding of, and commitment to, J.P.’s
emotional needs. Indeed, Crespo
testified that, in her opinion, Jose did not fully understand J.P.’s emotional
issues.
As to J.P.’s
educational needs, he had learning challenges for which he was receiving
special education services. Despite
this, Jose did not know what grade his son was in, nor could he name his
teacher. And, again, Crespo testified it
was her opinion that while Jose had a general understanding of J.P.’s cognitive
delays, he did not understand the severity and the long-term effect of them.
While J.P.
testified that he enjoyed the company of his half siblings, a sentiment that
the evidence suggested was mutual, there were two recent incidents in which
J.P. acted aggressively towards the two younger half siblings. Due to these, and possibly other, incidents,
Laura testified that she was concerned about J.P. living in the home she shared
with Jose and their children.
And, lastly,
and most certainly not insignificantly, J.P. expressed fear at the prospect of
living in his father’s home. Although he
testified he did not remember a choking incident, there was evidence in the
record that, at some point in the past, Laura had placed her hands around
J.P.’s neck. J.P. also expressed fear of
his father, testifying that he had struck him twice, once on the hand and once
on the head. And J.P. describes other
problems at his father’s house that made him uncomfortable, such as the
excessive swearing, the cockroach infestation, the sleeping arrangements, and
the lack of sufficient food.
All told, this
evidence portrayed a child who had significant psychiatric, emotional, and
academic challenges. In the two and half
years since removal from his mother’s care, J.P. had made notable progress in
many of these areas. But, without a
doubt, he remained fragile with much progress yet to be made. In light of all this, the juvenile court’s
conclusion that placing J.P. in Jose’s care would create a substantial risk of
detrimental to his emotional well-being was supported by the substantial
evidence detailed above.
Jose argues, as
the social worker represented and the Bureau’s counsel argued at the hearing,
that he did all the Bureau and the court asked of him. But the decision whether to return a
dependent child to the custody of a parent—or, as here, to place a child with a
noncustodial parent—is not governed solely by whether the parent has completed
his or her case plan. (
117 Cal.App.4th at p. 1344 [“the decision whether to return a dependent
child to parental custody is not necessarily governed solely by whether the
parent has corrected the problem that required court intervention.â€].) For example, in In re Joseph B. (1996) 42 Cal.App.4th 890, 893, Joseph was
detained because his parents were physically abusing him. By the time of the 18‑month status
review, the parents had completed their case plan and eliminated the problem
that lead to their son’s removal. (
emotionally scarred by the abuse and was traumatized by the prospect of being
returned to his parents’ custody, returning him posed a grave risk of detriment
to his emotional well-being such that return to parental custody was
improper. As the Court of Appeal put it,
“If returning the child will create a substantial risk of detriment to his or
her physical or emotional well-being [citations], placement must continue
regardless of whether the detriment mirrors the harm which had required the
child’s removal from parental custody [citations].†(Id. at
p. 894.)
The situation
here is similar. J.P. was removed from
his mother’s care due to neglect arising out of mother’s mental health and
substance abuse problems. Jose, the
noncustodial parent, sought placement of J.P. and completed all components of
his case plan. But, as in
890, compliance with his case plan was not the sole determinative factor. The court was still tasked with determining
the effect of the placement on J.P.’s well-being, and as we have held above,
there was substantial evidence supporting the court’s determination that J.P.’s
placement in his father’s care would have placed J.P. at a substantial risk of
detriment.
We conclude
with the observation that this is a close, and difficult, case, made so because
Jose made admirable strides during the reunification period in completing his
case plan and developing a father-son bond with J.P. While there was substantial evidence that the
circumstances fell short of those required to have J.P. placed in his care, we
trust that at the next stage, when the court selects a permanent plan pursuant
to section 366.26, all involved will carefully consider Jose’s conduct.
DISPOSITION
The petition of father Jose G. for
extraordinary writ relief is denied on its merits. (Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court
forthwith. (Id., rule 8.490(b)(1).)
_________________________
Richman,
J.
I concur:
_________________________
Haerle .J.
Kline, P.J.,
Dissenting.
The trial
court’s finding that placing J.P. in his father’s care would create a
substantial risk of detriment to the child’s emotional well-being is not in my
view supported by substantial evidence.
Accordingly, I respectfully dissent.
Because
“ ‘[t]he relationship of a natural parent and a child is a vital human
relationship which has far-reaching implications for the growth and development
of the child’ †(
122 Cal.App.4th 178, 195), dependency law is designed to protect it from
state interference absent a compelling need to do so. As many courts have explained, “[t]he
dependency scheme is based on the law’s strong preference for maintaining
family relationships whenever possible.
[Citations.] When a child is
removed from parental custody, certain legal safeguards are applied to prevent
unwarranted or arbitrary continuation of out-of-home placement. [Citations.]
Until reunification services are terminated, there is a statutory
presumption that a dependent child will be returned to parental custody. [Citation.]â€
(In re Yvonne W. (2008)
165 Cal.App.4th 1394, 1400.)
Where as
here, the trial court rejects the determination of the social services agency
that releasing the minor to his father would not “create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child†(Welf. &
Inst. Code, § 366.22, subd. (a)), the burden of showing such a
“substantial risk†devolves on the court.
“That standard, while vaguely worded to be sure, must be construed as a
fairly high one. It cannot mean merely
that the parent in question is less than ideal, did not benefit from the
reunification services as much as we might have hoped, or seems less capable
than an available foster parent or other family member.†(David B.
v. Superior Court (2004) 123 Cal.App.4th 768, 789.) Regrettably, these improper lesser standards
seem to me the ones that have been very unfairly applied.
What we
have in this case is a nonoffending and loving father who has reached out to
protect his son from dangers created by the mother and done all that has been
asked of him. Is he perfect? Certainly not, but neither are most parents,
and “[w]e do not get ideal parents in the dependency system.†(David B.
v. Superior Court, supra, 123 Cal.App.4th at p. 789.)
The trial
court’s assessments of the facts seem to me unjustified by the whole record;
particularly the court’s statement that there is not now a “positive
relationship†between Jose and his son, which I think a gross distortion of the
parent-child relationship reflected in the record. The court’s statement that Jose and his son
“don’t even speak the same language†significantly overstates the case and is,
in any case, a questionable criterion.
Most importantly, I think the trial court’s assessment of the relevant
facts is unbalanced and therefore unfair.
Fairly considered, the entire record simply does not establish the
“substantial risk†needed to support the trial court’s ruling.
I am also
troubled by the trial court’s statement that “there is no evidence before this
Court that [the foster mother] has done anything to sabotage any of these relationships,
period.†That observation seems to me
utterly blind to the record. I cannot
confidently say the foster mother has in fact “sabotaged†the relationship
between Jose and his son, but the record provides (and the majority opinion
describes) more than enough evidence to warrant that inference.
While I
dissent, I join the majority in hoping that, at the next stage, when the court
selects a permanent plan pursuant to Welfare and Institutions Code
section 366.26, the court and all others involved will more carefully
consider the father’s conduct. I hope
too that the court will keep in mind the high value the law places on the
relationship of a natural parent and a child, and that it is not the judicial
role to compare the resources or quality of care a parent can provide against
those that can be provided by a foster parent desirous of adopting the child.
For
the foregoing reasons, I would reverse the judgment.
| Description | Petitioner Jose G. (Jose) is the father of minor J.P., who was removed from the care of mother Michelle P. (Michelle) due to neglect. Jose, who was not married to Michelle and never had custody of his son, sought to have J.P. placed in his care. The juvenile court ordered the Contra Costa County Children and Family Services Bureau (Bureau) to provide reunification services to Jose. After over two years of services, the Bureau recommended that J.P. be placed with his father under a family maintenance plan. On April 11, 2013, rejecting the Bureau’s recommendation, the juvenile court terminated services to Jose, and scheduled a hearing under Welfare and Institutions Code section 366.26[1] to consider a permanent plan and termination of parental rights. Jose now petitions for extraordinary writ relief. Opposition has been filed on J.P.’s behalf. We conclude substantial evidence supports the juvenile court’s finding that placing J.P. in Jose’s care would create a substantial risk of detriment to J.P.’s safety and well-being. We therefore deny the petition. |
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