Filed 7/7/17 Edward S. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


EDWARD S.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al.,
Real Parties in Interest.



A151185

(Contra Costa County
Super. Ct. No. J14-01135)


This is a petition for an extraordinary writ, as authorized by California Rules of Court, rule 8.452. The petitioner is Edward S., the presumed father of Benjamin S., a dependent of respondent court. Petitioner seeks to overturn the April 19, 2017 order of respondent court setting a hearing pursuant to Welfare and Institutions Code section 366.26 at which his parental rights may be terminated.
The two captions in the petition frame petitioner’s contentions as (1) “The trial court erred in failing to find that there was a substantial probability that the child may be returned to the father within 18 months with additional reunification services” and (2) “The trial court erroneously relied on speculation and conjecture rather than evidence,” in crediting a statement in the status report prepared by the case worker of real party in interest Contra Costa County Children and Family Services Bureau (Bureau) that in late March 2017 petitioner had tested positive for methamphetamine.
In its opposition to the petition, the Bureau interprets these contentions as amounting to a claim that respondent court should not have terminated petitioner’s reunification services after 12 months, but should have granted him an additional six months of services. This interpretation accords with paragraph 10 of the petition, where petitioner requests that respondent court be ordered to “continue[]” providing reunification services, and with the conclusion of his supporting points and authorities, where he asks that this court “remand with orders that the father, Edward S., be provided with six additional months of family reunification services.”
Benjamin was declared a dependent of respondent court in June 2015. On petitioner’s appeal from the dispositional order, this court concluded that substantial evidence supported the findings that Benjamin was at substantial risk while entrusted to petitioner, who had a substance abuse problem, and who had been convicted of sexually abusing Benjamin’s half-sister. (In re Benjamin S. (Mar. 30, 2016, A145468) [nonpub. opn.] 2016 WL 1253631 ** 3-4, 6, 11-14.) However, we determined respondent court had erred in bypassing petitioner from reunification services. (Id., ** 15-17.)
Because Benjamin was more than three years old when removed from his parents’ custody, the Bureau was statutorily required to offer petitioner up to 12 months of reunification services. (Welf. & Inst. Code, § 361.5, subd. (a)(1)(A).) “[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months,” but only if the court “finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period.” (Id., subd. (a)(3)(A).) The court will look to whether the parent “has made significant progress in resolving problems that led to the child’s removal from the home,” and “demonstrated the capacity and ability . . . to complete the objectives of his . . . treatment plan.” (Id., § 366.21, subds. (g)(1)(B), (g)(1)(C).) A parent’s failure to make substantive progress in court-ordered treatment programs “shall be prima facie evidence that return would be detrimental.” (Id., subd. (f)(1)(B).)
On April 13, 2016—even before our decision was final—respondent court directed the Bureau to begin providing reunification services to petitioner, although the court found by clear and convincing evidence that Benjamin would be at substantial risk if returned to either of his parents. Petitioner was advised of the normal 12-month limits on services, which could lead to termination of his parental rights.
Petitioner got his 12 months of reunification services. The order he now challenges was made at the conclusion of the 12-month status review hearing conducted on April 19, 2017. The court had before it the status review report prepared by the Bureau’s caseworker one week before. The caseworker advised the court as follows:
“During this reporting period, [petitioner] remains homeless, living out of his truck, working in San Jose for Devcon Construction Inc., and driving to Fairfield to visit with his son weekly. He reports he has been removed from the Sex Offender Registry and is looking for a residence near his son to ensure stability to care for him. He reports that he continues to engage in individual and group therapy at A Step Forward.”
“Although [petitioner] has demonstrated engagement in sex offender treatment and outpatient program, he has had more no shows than negative tests and tested positive for methamphetamine on March 23, 2017. [His] recent relapse and unstable living situation does not demonstrate that he can sustain his long-term recovery and provide a permanent and stable home for his son.”
Meanwhile, Benjamin had been placed with his half-sister at their maternal grandparents, who “continue to provide Ben and Amber with a healthy and happy home from which they continue to flourish, and while they support [petitioner’s] progress, they continue to express willingness in adopting both children. The grandparents are prepared to provide permanency for Ben.”
In addition to recommending the termination of petitioner’s reunification services, the Bureau asked the court to “[f]ind by clear and convincing evidence that the return of the child to the custody of his . . . father would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child.” The Bureau also asked for a finding to the effect that petitioner’s progress on his case plan was “minimal.”
The actual hearing was brief. Petitioner’s counsel addressed the court as follows:
“Your Honor, my client is not going to set it for contest, but . . . . [¶] . . . [¶] He is genuinely—I will use the word shocked and surprised by the statement on page 10 that he . . . tested positive for methamphetamine on March 23rd. So my request would be that we be provided a copy of that positive test. It’s not attached to the report.
“He absolutely denies that he had any positive tests and he genuinely seemed surprised by this showing up in the report. So I think it’s only fair enough that we see this actual test result. He’s willing to submit on today’s report, but he really wants to urge the Court to allow visitation to remain in place as it is.
“He visits consistently with Ben. They have a very close relationship. Visit goes well. He gets along well with the grandparents and has been working well with them.
“His hope—he’s not ready to have his child returned to his care, but his hope is that for a permanent plan. We’re looking at something such as a guardianship with the grandparents. If the situation changes between now and the [Welfare and Institutions Code section 366.26] hearing, we will certainly file a 388.[ ] But the two most important requests are the visitation not change in any way and that we receive a copy of this test result.”
Counsel for the Bureau and Benjamin did not object to continued visitation if it was supervised.
Respondent court then stated its decision in these terms:
“I have to say that when I read this report I really was anticipating different information, quite frankly. I’m quite familiar with this case. It goes back a good deal of time in this department. And I’m really . . . very sad to read what I read and disappointed that father had missed ten tests and tested positive, according to the [Bureau]. Certainly, missed tests are indicative of positive test results.
“Dad has never wavered in his love for his son and I think son has never wavered in his love for his father. And I was truly hoping for a different outcome for both.
“That said, I have to say that the grandparents are taking exceptional care of this child, and he has really found I think a sense of stability and it shows in his academic success and how well he’s doing. I’m very happy that he’s landed with family who clearly love him and are dedicated to him. And he’s allowed to be there with his sister, which is really important. So I am going to follow the recommendations of the [Bureau], including the issue of supervision [for visitation]. . . .
“Ben is 10, soon to be 11, but he’s a little boy. I do not think it’s safe to have him around someone who is actively engaged in substance abuse, and particularly given father’s history, which puts father at risk of engaging in other sorts of conduct that is risky for a child to be around.”
“[W]ith these comments . . . , I will adopt and incorporate the recommended findings into the Court’s order here today.”
To begin with petitioner’s second contention, he places much emphasis on whether he did or did not test positive on March 23, 2017. Even if he is correct, there still remains the matter of the ten drug tests he had missed, omissions which both the Bureau and the court—without objection by petitioner—treated as proof that petitioner had not conquered his substance abuse problem.
As for petitioner’s first and primary contention, it is apparent from the comments of his counsel (“he’s not ready to have his child returned to his care, but his hope is . . . for” “a guardianship”) that petitioner had a realistic appreciation of his current situation that did not include reunification. Petitioner had already received the normal 12 months of reunification services, but he was still homeless and still fighting his drug problem. The court agreed with the Bureau that petitioner’s progress on his case plan was only minimal. In short, there was no immediate prospect of dramatic improvement. That state of affairs undoubtedly explains his decision not to request additional services because there could be no likelihood of the court making the required finding of a substantial probability that petitioner and Benjamin would reunify within six months. Accordingly, we cannot accept the manner in which petitioner’s first contention is framed, for it is a truism of review that a party “cannot successfully complain because the trial court failed to do something which it was not asked to do . . . .” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)
If petitioner’s first contention had been preserved for review, it would not prevail. Whether to order additional reunification services is a decision entrusted to a court’s discretion, and would thus be reviewed for abuse. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166–167.) Respondent court was “quite familiar with this case,” and “disappointed” with petitioner’s lack of progress. The court would be within its authority as the trier of fact to make a realistic determination of petitioner’s chances of completing his case plan and being able to offer Benjamin a secure and stable home. (See In re William B. (2008) 163 Cal.App.4th 1220, 1228, 1230.) In light of the preceding paragraph, abuse could not be shown.
The petition is denied on its merits. This decision is final as to this court forthwith. (Cal. Rules of Court, rule 8.490(b)(2)(A).)



_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.