Filed 4/27/17 Robert L. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

ROBERT L.,

Petitioner,

v.

THE SUPERIOR COURT OF KERN COUNTY,

Respondent;

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,

Real Party in Interest.

F074978

(Super. Ct. Nos. JD127606-01, JD127607-01, JD127608-01, JD135108-00)


OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Louie L. Vega, Judge.
Michelle R. Trujillo, for Petitioner.
No appearance for Respondent.
Mark Nations, Interim County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Robert L. (father) seeks extraordinary writ review of the juvenile court’s orders issued in January 2017 at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) terminating his reunification services and setting a section 366.26 hearing as to his four minor daughters, Jade, Sara, C.L. and D.L. Father contends the juvenile court erred in not returning the children to him under a plan of family maintenance. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Father has a long history of substance abuse and child neglect. In October 2011, the Kern County Department of Human Services (department) filed dependency petitions on behalf of then three-year-old Jade, one-year-old Sara and seven-month-old C.L., alleging father and Cindy, the mother of Sara and C.L., engaged in domestic violence in the children’s presence. Father and Cindy were long time methamphetamine users and father was taking prescription medication for pain and anxiety. Their domestic violence was chronic and mutual, involving slapping, punching, scratching and tearing clothes. The juvenile court allowed the children to remain in parental custody with family maintenance services. However, in August 2012, Cindy relapsed and left the family home. The children remained in father’s care and in June 2013, the juvenile court terminated its dependency jurisdiction.
These dependency proceedings were initiated in August 2015, after the department took then seven-year-old Jade, five-year-old Sara, four-year-old C.L. and two-year-old D.L. into protective custody because father left them alone unsupervised at a homeless shelter where they were residing while he used methamphetamine. The homeless center case manager (the manager) suspected father had been using methamphetamine since he began staying at the homeless shelter approximately two months before. He had not asked father to leave because of the children and had allowed him to stay in the room during the day against center policy because he was sick. However, the manager intended to ask father to leave if he did not comply with substance abuse treatment or did not supervise the children. The manager also stated that Cindy occasionally visited the children at the shelter and usually created “an issue.” On a recent occasion, she and father were yelling and cursing at each other in the presence of the children. Cindy accused father of not watching the children and demanded the food stamp card. The department placed the children together in foster care.
In December 2015, the juvenile court exercised its dependency jurisdiction over Jade, Sara, C.L. and D.L. pursuant to section 300, subdivision (b) (failure to protect), after sustaining allegations that father endangered the children by failing to adequately supervise them, leaving them unattended while he used methamphetamine and caring for them while under the influence. The court ordered father to participate in child neglect, substance abuse, and mental health counseling and submit to random drug testing. The court also ordered twice weekly supervised visitation. The court did not order reunification services for Tanya because she did not request custody and denied Cindy reunification services because she failed to treat her drug use (§ 361.5, subd. (b)(10) & (11)).
In April 2016, father filed a modification petition pursuant to section 388 alleging he completed substance abuse and parenting counseling and obtained suitable housing. He also alleged he and the children had a strong bond and they wanted to return to his care. He asked the juvenile court to place the children with him under a plan of family maintenance. The juvenile court set a hearing on the matter.
Meanwhile, the department filed a report recommending the juvenile court grant father’s section 388 petition. The department verified that he completed a 26-week parenting program and substance abuse counseling in February 2016. In addition, he was receiving mental health counseling, psychiatric services, medication and substance abuse treatment at a community health center. According to his therapist, he was actively participating and had made “important progress.” He submitted to random drug testing on a monthly basis and tested either negative or positive for morphine for which he had a valid prescription. He had also obtained suitable housing for the children where they had been visiting him unsupervised for several months.
On April 25, 2016, social worker Lisa Lerma conducted her monthly, unannounced visit with the children at their foster home. She inquired about their recent unsupervised weekend visit with father. The children told Lerma that Cindy stayed overnight at their father’s home over the weekend and slept with C.L. and D.L. C.L. said she and her mother fell down the stairs and her mother hurt her leg. The children also said that their mother took them to the park and then to her friend Bob’s house while father stayed home to watch their puppy. The children also told Lerma they had been instructed not to tell that Cindy was staying with them.
Father admitted allowing Cindy to stay in his home and have contact with the children. He explained that he let her stay because she did not have anywhere else to go. He acknowledged his mistake and said he was struggling with his mental health since the children were removed. He said he was seeing a psychiatrist but had not seen a therapist since January 2016.
The department filed a supplemental report opining that family maintenance services were not appropriate and recommending the juvenile court deny father’s section 388 petition. The department also recommended the court order father to participate in counseling to learn to protect the children. Father’s attorney withdrew his section 388 petition.
In June 2016, at the six-month review hearing, the juvenile court continued reunification services for father and set the 12-month review hearing in October 2016. The court ordered father to participate in a group counseling program to learn to protect the children (learning to protect program).
Father continued to participate in mental health treatment and enrolled in a 26-week learning to protect program. However, he missed three of six individual therapy sessions scheduled from July 1 to September 9, 2016, and two of the learning to protect counseling sessions, the maximum allowable to remain in the program. Father also missed 11 visits from June 21 to September 27, 2016. In addition, he reportedly slept during a visit in October 2016 leaving the children unattended, and yelled and cursed at them. As a result, the department reinstated supervised visitation.
In its report for the 12-month review hearing, the department recommended the juvenile court find it would be detrimental to return the children to father’s custody and terminated his reunification services.
In October 2016, the juvenile court convened the 12-month review hearing and father and Cindy appeared with their attorneys. Cindy appeared in custody. The court set a contested hearing and, after multiple continuances, set it for a January 2017, court date.
In the interim, father was dropped from the learning to protect program for excessive absences after completing 22 of the required 26 group sessions. He also missed four weekly visits in October and two in November 2016. Father attributed his absences and missed visits to depression he experienced after seeing Cindy in court.
On January 5, 2017, the juvenile court conducted a contested 12-month review hearing, approximately 16 months after the children were taken into protective custody. Father’s attorney informed the court that father reenrolled in the learning to protect program, attended four classes and would complete the program in May 2017. Father was the sole witness.
Father attributed his missed counseling sessions and visits to rheumatoid arthritis, which caused him to feel poorly, and required him to take pain medication. After reenrolling in counseling, he arranged to attend sessions at night so that he had all day to get there. He acknowledged some of his medications could make him sleepy but said he took those medications at night before he went to sleep.
Father denied falling asleep during a visit in October 2016, or yelling at the children. He said he remembered the visit clearly and he had laid his head back on the bench for a second because his head hurt but he knew where the girls were at all times. As far as yelling, he said he was a “loud-voice person by nature.”
Father did not believe he placed the children at risk by allowing Cindy to live in his home, even though “[a]t the time, she was using and she was unstable.” He explained, “They wanted to see their mom, and their mom showed up, so I let them see her.” Asked to clarify, he said Cindy “might have been” using or “she might have been coming down.” (He was not sure, even though he had known her for 14 years. He denied allowing Cindy to leave the house with the children, claiming he kept the children with him the whole time.
Father claimed he had Cindy arrested for burglarizing his home and he had not seen her since she was released from custody, except at court. He said she lived down the street but he did not see her. If the children were returned to his custody, he did not intend to allow them around their mother by themselves.
Father’s attorney argued father did not pose a risk to the children, claiming he completed his court-ordered services with the exception of the learning to protect program and understood he could not leave the children alone with Cindy. His attorney asked the court to either return the children to him with family maintenance services or continue reunification services for another six weeks to the 18-month review hearing. The minors’ attorney acknowledged the children were “adamant” about returning to father but believed the children would be at risk if returned to him under family maintenance services and joined in county counsel’s recommendation to terminate reunification services.
The juvenile court found it would be detrimental to return the children to father’s custody, stating, “We have father, who … has a significant history, over 20 years, … [of] drug abuse. We have someone that he suspects is either high or coming down—the mother of these children—and allows this contact to occur, which is obviously detrimental to the children.” The court further found the department provided father reasonable reunification services, that he made minimal efforts to avail himself of them and that there was not a substantial probability the children could be returned to his custody in the time remaining before the 18-month review hearing. Consequently, the court set a section 366.26 hearing for May 5, 2017, to implement a permanent plan for the children.
DISCUSSION
Father contends there was insufficient evidence to support the juvenile court’s finding of detriment. We disagree.
It is statutorily presumed at each review hearing that the juvenile court will return a dependent child to parental custody unless the court finds by a preponderance of the evidence that returning the child would be detrimental. Section 366.21, subdivision (f)(1) (the statute) governs the 12-month review hearing and provides:
“After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent … unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.”
The statute further provides that the failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. (§ 366.21, subd. (f)(1)(B).)
Father contends he “reduced if not eliminated the risk for which the children were originally brought under the [juvenile] court’s jurisdiction.” He points to evidence he completed all of his court-ordered services except the learning to protect program and claims he demonstrated by his testimony that he understood the risk Cindy posed to the children and would not allow her any future contact with them. As to the learning to protect program, father points out that he reenrolled in the program and was making “excellent progress” at the time of the contested hearing.
On a challenge to the juvenile court’s finding of detriment, we review the record to determine whether it is supported by substantial evidence. “In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the [juvenile court’s] order.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) We do not inquire whether the evidence supports a contrary finding but instead whether substantial evidence contradicted or not, supports the finding actually made. (In re A.B. (2016) 2 Cal.App.5th 912, 925.) In this case, we conclude that it does.
The detriment to the children, if returned to father’s custody, was his unwillingness or inability to protect them from Cindy. Though it was father’s drug use that necessitated the children’s initial removal in August 2015, the potential that he would allow Cindy contact was always a threat to the children. Such were the circumstances in the prior dependency case, when Cindy relapsed and the court terminated her services. Father allowed her continuing contact with the children up to the time they were taken into protective custody at the homeless shelter in August of 2015.
Further, father failed to eliminate the risk that Cindy posed. First, he failed to make substantive progress in safely parenting his children. He completed a parenting program in February 2016, but a few months later left the children with Cindy unsupervised. Subsequently, the juvenile court provided him a second more specialized parenting program focused on learning to protect the children. Father participated in the program but not regularly and was disenrolled. These facts constitute prima facie evidence of detriment in that father did not participate regularly and make substantive progress in his court-ordered parenting services.
Beyond that, and contrary to his claim, father did not demonstrate he understood the danger Cindy posed to the children. He testified he did not believe allowing Cindy to live in his home endangered the children, even though he believed she was using drugs at the time and was unstable.
Ultimately, the juvenile court cannot return a child to parental custody unless it is safe to do so. In this case, more than substantial evidence supports the juvenile court’s decision it would be detrimental to return father’s children to his custody given his long history and repeated pattern of failing to protect them. Further, having also decided there was not a substantial probability of return before the 18-month review hearing, the juvenile court had no choice but to terminate reunification services and set a section 366.26 hearing. (§ 366.21, subd. (g)(4).)
We find no error.


DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.