Filed 8/31/17 P.N. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

P.N., Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Petitioner, MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

H044772 (Monterey County Super. Ct. Nos. J48701, J48702, J48703)

I. INTRODUCTION

P.N. is the father of the three children at issue in this dependency proceeding. The father has filed a petition for extraordinary writ challenging the juvenile court’s orders terminating his reunification services at the 18-month permanency review hearing (see Welf. & Inst. Code, § 366.22, subd. (a)(1))[1] and setting the matter for a section 366.26 permanency planning hearing.

In his writ petition, the father contends exceptional circumstances exist such that he is entitled to extended reunification services: specifically, “he has substantially complied with his reunification plan.” For the reasons explained below, we will deny the father’s petition.

II. Factual and Procedural Background

A. Section 300 Petition

On September 10, 2015, the Monterey County Department of Social Services (the Department) filed petitions under section 300, subdivision (b) [failure to protect] alleging that the children, M.N.P. (age 7), P.N.P. (age 5), and L.N.P. (age 4) came within the jurisdiction of the juvenile court.

Two days earlier, on September 8, 2015, the Department had received a referral regarding the mother, who had been in a Carl’s Jr. restaurant with the youngest child and was “heavily intoxicated.” At around the same time, the middle child had been left in Macy’s without supervision. The mother was arrested and all three children—including the oldest child, who was in the care of the father at the time—were placed in protective custody.

The petitions detailed a number of prior referrals regarding the children and both parents. A May 2014 referral revealed that the mother had an alcohol addiction and that there had been domestic violence in the home. A February 2015 referral revealed that the oldest child had a burn over a significant portion of her face. Three referrals in March 2015 revealed that the family home was unsuitable for the children, that the mother had “actively delayed medical treatment” for the middle child’s asthma, that the mother had left the children without supervision, and that the mother had driven the children while she was under the influence. A June 2015 referral was made while the children were living with the maternal grandmother; it concerned the father’s verbal abuse of the children and threat to abduct the children. Two referrals in August 2015 revealed that the mother was homeless; the Department gave her food and hotel vouchers.

The petitions also noted that the father had multiple prior arrests for driving under the influence and battery. The mother had a theft charge, for which she failed to appear.

At a detention hearing held on September 11, 2015, the juvenile court found the Department had made a prima facie showing that the children came within section 300 and that continued custody by the parents would be detrimental to the children. The juvenile court ordered the children detained.

B. Jurisdiction/Disposition

The Department filed a jurisdiction/disposition report on November 5, 2015, recommending the juvenile court order reunification services for both parents.

The children had been placed together in a licensed foster home, but it was not a concurrent home. The maternal grandmother was requesting placement. The mother and the father were both homeless.

The mother admitted having an alcohol problem. She had participated in a Family Mental Health Assessment and had been diagnosed with Persistent Depressive Disorder as well as substance abuse disorder. An evaluator believed the mother had “no insight into the impact of her mental health/substance use issues on her ability to parent her children.”

The father admitted also having a substance abuse problem, but he claimed to have been sober for “at least two years.” He acknowledged he had been working at a winery. He admitted that his relationship with the mother was “ ‘rocky’ when ‘alcohol is involved.’ ”

The oldest child had required medical care “due to neglect as a result of homelessness.” She had trouble maintaining focus in school and was receiving counseling. She was concerned about her parents’ health and safety and indicated she was fearful of their smoking and drinking.

The middle child had also required medical care due to his asthma. He was doing well in school, but he had exhibited inappropriate behaviors and used inappropriate language during a meeting with the social worker—specifically, he had been aggressive and used expletives. He had expressed concern about the parents and his own safety.

The youngest child had no significant medical problems but wore pull-up diapers at night due to enuresis. He described the parents as “scary” and said that alcohol made him sad. The parents tended to give the youngest child the least attention and affection.

The recommended case plan required the mother to work with a therapist to address her mental health issues. The father was required to participate in domestic violence classes and therapy. Both parents were required to participate in outpatient treatment and maintain sobriety, participate in parenting education, and participate in a family mental health assessment. The Department recommended the parents have supervised visitation with the children at least once a week.

An uncontested jurisdictional hearing was held on November 10, 2015. The juvenile court adopted the Department’s recommendations, declaring the children dependents, ordering family reunification services for both parents, and approving the case plan.

C. Six-Month Review

The Department filed a six-month review report on April 27, 2016, recommending that both the mother and father continue to receive reunification services and that the children remain in out-of-home care.

The children remained in a foster home together. The mother was still homeless, but the father was renting a room in a residence in Gonzalez.

The mother had begun inpatient treatment in December 2015 but had been discharged in January 2016 for drinking alcohol. The mother had then participated in outpatient treatment and was readmitted to inpatient treatment in February 2016. She was discharged again in April 2016 for drinking alcohol. Her participation in services—including therapy, parenting classes, and visitation—had been “inconsistent.”

The father had begun working at a produce company but had lost that job because he needed to leave early for parent education and visitation. He had found a new job and was consistent with his visitation. He reported that he had been regularly attending AA meetings, but he had not been consistent in providing proof. He had been referred to domestic violence counseling.

The parents had both “been advised that they need to make substantial progress in order to reunify with their children.” The parents were told that “substantial progress is determined by showing up for services and making visible behavioral changes indicating insight [in]to their children’s needs.”

At the six-month review hearing held on May 17, 2016, the juvenile court adopted the Department’s findings and recommendations, continuing reunification services for both parents.

D. 12-Month Review

The Department filed a 12-month review report on November 1, 2016, recommending that the mother’s reunification services be terminated and that the father continue to receive reunification services.

The children’s placement had changed: they were living with their maternal grandmother and uncle. The mother was still homeless and the father still was living at the same address in Gonzalez.

The mother had been admitted to a new inpatient program, but she had relapsed twice and was discharged from the program in October 2016. In July 2016, the mother had arrived to a supervised visitation smelling of alcohol. During other visitations, she had difficulty setting appropriate boundaries with the children, in that she had been “overly affectionate” toward the children.

The father had been participating in outpatient treatment and employment training, and he was “working on obtaining stable housing.” He had also been attending AA meetings and participating in therapy. He had completed parenting classes and he had implemented the skills he had learned during visitations. He had completed domestic violence counseling and had learned a lot from the sessions. The father reported that his sobriety had helped him rediscover coping skills such as playing music and making art. The father was playing guitar with a group of musicians. The father understood that he needed to continue to work on separating himself from the mother.

The father had progressed to having unsupervised visitation with the children. He walked them to school in the mornings on a daily basis, he had visits with them on the weekends, and he transported them to their therapy sessions once a week. He helped the children with their school work, was consistently on time to visits, and was attuned to the children’s feelings and emotions.

The social worker believed that given the father’s progress, there was a substantial probability that the children could be safely returned to his care after additional reunification services. The father’s biggest challenge was setting clear and healthy boundaries with the mother and remaining focused on his own progress.

At the 12-month review hearing held on November 15, 2016, the juvenile court adopted the Department’s findings and recommendations, terminating reunification services as to the mother but continuing them for the father.

E. 18-Month Review Report

The Department’s 18-month review report, filed on April 27, 2017, recommended reunification services be terminated as to the father and that the juvenile court set a permanency planning hearing.

The children were nine, seven, and five years old, and they were still living with the maternal grandmother and uncle. The father continued to take them to school each day, transport them to therapy, and spend Saturdays with them. A four-hour Sunday visit had recently been added. After some visits, the children reported that the father had not fed them. Sometimes, the children called their grandmother during visits and asked to be picked up early. On other occasions, the children were reluctant to go to the visits. The middle child and youngest child felt that the father focused on his band too much, taking away his attention from the children.

The father was still renting a room in a house where he was unable to accommodate the children. The owners of the home were not willing to participate in a home assessment or background check, and therefore the father could not have overnight visitation. The father was having difficulty finding other housing.

The father had a part-time job and had completed his employment training. He had also completed the outpatient treatment program, but the social worker could not verify the father’s full participation in the program. Likewise, the father had not been regularly providing documentation of his AA meetings, and one meeting card did not appear to be authentic.

The father had indicated to the social worker that he did not believe his drinking had placed the children in danger. He did not have a safety plan. The father had indicated he wanted to “rebuild” his relationship with the mother, despite having previously indicated he would file for divorce.

The social worker expressed “disappointment” that the father had not “demonstrated significant progress” despite being given “intensive support and resources.” The social worker was concerned that the father’s “lack of follow through” on aspects of his case plan showed he would be unable to follow through with tasks necessary to meet his children’s needs and keep them safe.

The juvenile court set the matter for a contested hearing on June 20, 2017.

F. Addendum Report

The Department filed an addendum report on June 6, 2017.

The father had not been consistent in transporting the children to their weekly therapy sessions. He had returned the children over three hours late after one visit in May 2017. The father had taken the children to “downtown,” where he had “a band gig on the streets.” He had told the children to go to a movie by themselves. The children had felt unsafe. The following day, the father had been “a no show” for a visit.

When asked about sending the children to the movies by themselves, the father said he had “talked to the manager” about watching the children. He had difficulty understanding why this was a concern or how his children may have felt.

The father had found a new residence and a home assessment had been completed, but the residence was approved only for day visits since the father had no plan for childcare during his night shifts. After the father changed jobs and began working a day shift, he requested overnight visits but still had no plan for the children’s daytime care. He eventually provided a list of people who were willing to help him with childcare, and one overnight visit was approved starting in late May 2017. However, at the initial overnight visit, the father failed to give the middle child any asthma medication, and the following day, the middle child had difficulty breathing and missed school.

The father was not sure how he would attend AA meetings while working during the day and caring for the children.

G. 18-Month Review Hearing

A contested 18-month review hearing was held on June 20, 2017.

1. Testimony of the Father

The father testified that he had a three bedroom house with a large yard. The children had spent the night there three times. His plan for the children’s care during his work hours was to use after-school programs, summer school, and summer camp. He had found a babysitter for Saturdays.

The father initially claimed he had been sober for two years but later admitted it had only been a year and a half. He testified that he continued to attend AA meetings. He initially claimed he had not seen the mother since December 2016, but he later admitted he had visited her on January 1, 2017, and still later he admitted that the mother had showed up at one of the children’s medical appointments in May 2017. He had filed for divorce, but the divorce was not final.

The father explained the incident at the street music festival. He had not intended to play music when he took the children there. He initially testified that after he arrived, he was “overcome by emotion” and decided to play. He later admitted that he decided to play because he had been offered money. He admitted he had allowed the children to go to the movies alone, and he admitted that it was a “mistake,” but he explained that he had “left them under [the] supervision” of a woman whose name he did not know. He claimed he had gone to pick up the children after 30 or 40 minutes.

The father felt he was ready to take care of the children. He admitted not giving the middle child any asthma medication during a visit, claiming he thought that the grandmother had already administered the medication.

When asked about domestic violence between him and the mother, the father testified that he thought he had committed “verbally emotional” abuse. When asked if he had hit the mother, the father responded by referencing the mother’s presence in court and noting, “[S]he knows that I never hit her.”

2. Testimony of the Social Worker

Social worker Christine Le testified about her concerns. The father had difficulty following through on tasks and promises. For instance, the father had been asked to provide medical documentation and report any medication changes following the middle child’s visits with his asthma specialist, but the father had not provided complete information to the social worker and had failed to inform the caregivers about a new medication that the middle child needed.

Social worker Le did not believe the father understood the “negative impact” of leaving the children unsupervised at the movies during the street music festival. She believed the father was not “ready and prepared” to emotionally support the children, who all had mental health concerns. She was not “confident” he could ensure the children’s safety.

3. Arguments and Juvenile Court Findings

The father’s attorney argued that the father had been trying to meet the Department’s standards for safety and stability, and that he should be given “a few more months.” Counsel for the Department argued that “this is an 18-month case” and that they were “out of time.” Counsel for the children submitted the matter after acknowledging that the father loved his children, that the children loved the father, and that the father had obtained housing and a job.

The juvenile court found that the father had “really tried” to engage in the reunification services. The court congratulated the father on finding housing and a job, calling him “a hard worker.” However, the court found that the father was not “in a position to care for the children.” The father’s progress was not where it should have been “at the 18-month period.” The father’s decision to play with his band at the street music festival showed “a lack of judgement [sic].” The court also found it significant that the father had not showed up for a visit the following day and that the father had not ensured the middle child had his asthma medication. The court found that returning the children to the father would not be “right for the kids” because there “continue[d] to be a substantial risk of detriment” if they were placed in his care.

The juvenile court terminated the father’s reunification services and set a permanency planning hearing for October 3, 2017.

III. Discussion

The father contends he is entitled to extended reunification services “under the ‘exceptional circumstances’ test” because “he has substantially complied with his reunification plan.” Before evaluating the father’s claim, we will provide an overview of the applicable legal principles and standard of review.

A. Legal Principles

Section 361.5, subdivision (a) generally mandates that reunification services be provided whenever a child is removed from the parents’ custody. (See In re Luke L. (1996) 44 Cal.App.4th 670, 678.)

When a child is three years of age or older at the time of removal, reunification services are presumptively limited to 12 months. (§ 361.5, subd. (a)(1)(A).) Reunification services may be extended up to 18 months from the date of removal if the juvenile court finds a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within that extended time period or that reasonable services have not been provided to the parent or guardian. (Id., subd. (a)(3)(A).) At the 18-month review hearing, “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.” (§ 366.22, subd. (a)(1).)

In general, if the child is not returned to the parent at the 18-month review hearing, “the court must terminate reunification services and set a hearing for the selection and implementation of a permanent plan.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015 (Mark N.).) However, “upon a showing of good cause,” the juvenile court has discretion under section 352 to continue the 18-month review hearing and extend reunification services up to 24 months from the date of removal. (In re J.E. (2016) 3 Cal.App.5th 557, 564, fn. omitted (J.E.).)[2]

“[S]ection 352 provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799.) “In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a).)

Cases have upheld a juvenile court’s extension of reunification services beyond the 18-month statutory period where there were “extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan.’ [Citation.]” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510 (Denny H.).) In exercising its discretion to extend services beyond 18 months, the juvenile court should also consider “the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the child’s] need for a prompt resolution of [his or] her dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court’s attention. [Citation.]” (Mark N., supra, 60 Cal.App.4th at p. 1017.)

B. Analysis

As noted above, the father contends that he is entitled to extended reunification services “under the ‘exceptional circumstances’ test” because “he has substantially complied with his reunification plan.” However, the father does not contend that there were “extraordinary circumstances ‘involv[ing] some external factor which prevented [him] from participating in the case plan.’ [Citation.]” (Denny H., supra, 131 Cal.App.4th at p. 1510.) Nor does the father contend the Department failed to “offer or provide reasonable reunification services.” (Mark N., supra, 60 Cal.App.4th at p. 1017.) The father cites no authority, and we have found none, to support his claim that the juvenile court had discretion to extend services due to his substantial compliance with his case plan.

We observe that the father clearly loves the children, and that he has put great effort into his case plan and has made progress towards being able to provide for the children’s health and safety. However, the record does not support the father’s claim that exceptional circumstances exist in this case so as to justify an extension of reunification services beyond the 18-month period. Rather, the record supports the trial court’s finding that the father had not made sufficient progress by the time of the 18-month review hearing so as to be “in a position to care for the children.” The father still had difficulty ensuring the children’s safety and supervision at all times, as shown by his decision to send them to the movies alone while he played in a band at a street music festival and by his failure to ensure the middle child had his asthma medication during an overnight visit. The father’s testimony indicated he was still in denial about the impact of his drinking and domestic violence on the children, and he provided inconsistent claims about his efforts and intention to permanently separate from the mother. While the father had shown consistency with visiting the children, he also had failed to show up for a recent visit, had been inconsistent in transporting the children to therapy, and had returned the children over three hours late after the street fair.

In addition, the record does not contain evidence showing that an extension of reunification services was in the children’s best interest. With such an extension, the children’s lives still would not be permanently settled. (See § 352, subd. (a).)

Having carefully reviewed the entire record, we find that the juvenile court did not abuse its discretion by finding no good cause to continue the father’s reunification services beyond the 18-month period.[3]

IV. Disposition

The petition for extraordinary writ is denied.

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