Filed 8/23/17 In re David G. CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re DAVID G., JR., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Plaintiffs and Respondents,

v.

DAVID G., SR.,

Defendant and Appellant.



G054221

(Super. Ct. No. DP025936-001)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed as modified.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency.
Nicole Williams, under appointment by the Court of Appeal, for Plaintiff and Respondent Ciera S.
No appearance for the Minor.
* * *
INTRODUCTION
This is a troubling case. We recognize that the juvenile dependency system in this county labors under the twin disadvantages of inadequate funding and crushing caseloads, so we are reluctant to throw stones at people struggling under such circumstances. But no one can suffer through this record without being profoundly disappointed. The stakes here are very high, perhaps the highest in our legal system: the lives and well-being of children. When the system fails to function properly, as it did here, the consequences can be heart-wrenching and tragic.
David G., Sr. (David, Sr.) appeals from an order of the juvenile court returning his son, David G., Jr. (David, Jr.) to David, Jr.’s mother, Ciera S., after the 18-month review hearing. David, Jr. was detained at age 16 months. At the time, David, Sr. was in Mexico, having been deported shortly after David, Jr.’s birth.
The reunification process dragged on far beyond the 12 months mandated by the Legislature for a child of David, Jr.’s age at detention. Because he was in Mexico, David, Sr. had great difficulty fulfilling his case plan, particularly the drug-testing portion. Nevertheless, at the six-month mark, Orange County Social Services Agency (SSA) recommended that David, Jr. be reunified with his father; SSA continued to make this recommendation as the months went by.
At the 18-month hearing, the juvenile court found that David’s return to both parents was warranted despite SSA’s assessment that Ciera was not yet ready. Because Ciera had had another baby and David, Jr. had developed a relationship with this child, the court decided that giving custody to Ciera under a family maintenance plan would serve David, Jr.’s best interests. David, Sr. appeals from this order.
Although we have grave reservations about the way the juvenile court process arrived at this decision, we are a reviewing court and do not write on a blank slate. Under the applicable standards of review – substantial evidence and abuse of discretion – we cannot second-guess the juvenile court’s decisions in this matter. We therefore affirm the order, with modifications to ameliorate a few problems.
FACTS
The record in this case – or more precisely the omissions from the record – has prolonged the appellate review process considerably.
David, Jr. was detained when he was 16 months old, in February 2015. Someone reported either to the police or to SSA that Ciera was having sex in front of him and using and selling methamphetamine. Ciera and David, Jr. lived with Ciera’s father and a roommate. When the police and SSA arrived at the home, Ciera’s father reported that the roommate informed him of Ciera’s drug use, and he himself reported that David, Jr. sometimes wandered about the house unsupervised.
Ciera had been taking care of David, Jr. only since December 8, 2014, after having been in jail for approximately a year. While Ciera was in jail, her sister, Ashleigh S., and David, Jr.’s paternal grandparents took care of him. After her release, her father stated, Ciera’s former boyfriend took care of David, Jr. more than Ciera did. She herself complained of being overwhelmed with the difficulties of caring for a child without a man around, after her boyfriend left her for another.
Ciera was on probation, and, upon conducting a search, the officers found a meth pipe hidden in an air vent in the room Ciera shared with David, Jr. She was arrested.
David, Jr., who had been napping, woke while the officers and the social workers were interviewing Ciera. He sat quietly on a social worker’s lap while the interview went on, paying no attention to Ciera. Later Ashleigh arrived, and David, Jr. immediately went to her. Ashleigh reported that she was very concerned about Ciera’s drug use and did not think David, Jr. should be around Ciera while she was using.
The roommate chimed in to tell SSA about the smoke issuing from Ciera’s room and about how she yelled at David, Jr. when he cried. Ciera confirmed that she used methamphetamine every two days and smoked marijuana. She also implied that she engaged in prostitution.
After Ciera’s arrest, Ashleigh took David, Jr. to the hospital for examination. The examining physician believed that David, Jr. was suffering from withdrawal symptoms. Test results were positive for THC. When informed of this fact in jail, Ciera responded that she had left David, Jr. with a friend while she went to have her nails done and the friend’s brother, a gang member, ultimately wound up watching the child. Ciera stated the brother brought David, Jr. home, and she speculated that the brother had been smoking marijuana in the car. She also asked the social worker if the “kid” could be sent to Mexico to his father.
Ciera told the arresting officers that her drug of choice was methamphetamine, which she used every two days, having started on this drug and marijuana at age 12. At the time of David, Jr.’s detention, Ciera was a few days short of her 26th birthday. She had an extensive criminal history of felony and misdemeanor convictions, mostly for drug-related crimes.
The day after David, Jr. was detained, SSA found out from David, Sr.’s sister, who spoke to a social worker, that her brother told her Ciera had texted him that she had fed their son a marijuana brownie so he would stop fussing and go to sleep. Ciera’s sister, Ashleigh, told the social worker that “without a doubt” David, Jr. had been exposed to methamphetamine smoke while Ciera was using.
David, Jr.’s detention was not Ciera’s first encounter with SSA. Her parental rights to another child, born in 2008, had been terminated in 2009 after the child tested positive to methamphetamine and marijuana at birth. Ciera admitted she had deliberately taken drugs to induce labor “as she was sick of being pregnant.” This method may have been successful; the child was born the next day with both methamphetamine and marijuana in his system. On the other hand, the timing of the birth may have been merely coincidental; Ciera had been using methamphetamine and marijuana throughout her pregnancy. By the time her parental rights were terminated in 2009, Ciera had failed three drug treatment programs. The initial petition alleged “abuse of sibling” against Ciera as an additional ground for David, Jr.’s detention.
David, Jr. was placed with his paternal grandparents on February 19, two days after he was detained.
The initial petition, filed on February 20, 2015, alleged that the whereabouts of both Ciera and David, Sr. were unknown. As of the date of the detention hearing, February 23, neither parent had been located. Ciera turned up later in the day, and the hearing was reconvened in the afternoon, but she left the court before the afternoon hearing, despite having been ordered to appear. The court ordered David, Jr.’s detention. SSA located David, Sr. in in Mexico in early March. He stated he did not want David, Jr. to be with Ciera when she was using drugs and that he wanted custody of his son.
The next hearing took place on July 7, 2015, the same day an amended petition was filed. The amended petition alleged that Ciera had been arrested on March 18 on different drug charges and was currently in jail. David, Sr. had been in jail when his son was born, and he was subsequently deported to Mexico. The amended petition alleged that David, Sr. stated he provided financial support for his son, had him baptized, and spoke with him on the phone from Mexico. The amended petition did not allege any facts indicating that David, Sr. had an unresolved substance abuse problem.
At the jurisdiction and disposition hearing on July 9, SSA recommended visits between Ciera and David, Jr. every other week while she was in jail and indicated that the previously ordered weekly visits were not going well. Ciera was scheduled for release on September 18.
The court assumed jurisdiction over David, Jr., bypassed reunification services for Ciera, and set her visitation at once every other week while she was in jail and six hours per week when she was released. David, Sr. was to find family reunification services in Mexico, including a drug testing program, and visits in Mexico once a month were authorized, with his parents bringing David, Jr. to see him. Determination of David, Sr.’s paternal status was deferred until the next hearing. The results of a paternity test, received in June 2015, showed a 99.99 percent probability that David, Sr. was David, Jr.’s father.
At the case plan review hearing, on July 16, the court approved the case plan submitted with the July 16 interim report. The case plan for David, Sr. included refraining from using alcohol and illegal drugs, finding a legal source of income, participating in programs, testing, and counseling for substance abuse, completing a parenting class, and participating in AA and NA programs. David, Sr. asserted he had last used drugs in 2013 before being deported after a second conviction for a drug offense, which ended his ability to obtain legal residency in the United States. He had formerly used cocaine, crystal meth, and marijuana.
The interim report for July 16 concentrated mainly on David, Sr. and referred to Ciera only to state she was still in jail.
The next hearing took place on September 9, 2015. At this time, Ciera was still in jail, and she was pregnant. She told SSA that she intended to go into Heritage House’s residential drug treatment program upon her release from jail on September 16.
The September 9 interim report contained two summaries of visits between Ciera and David, Jr., in August. David, Jr. was then nearly two years old. As was the case with the previously documented visits, he and Ciera had to speak through glass over a telephone. David, Jr. quickly became bored and distracted, and the visits ended early.
The rest of the report dealt mainly with David, Sr.’s classes and drug testing. The report included information regarding David, Jr.’s visit with his father in Mexico. The hearing held that date dealt almost entirely with the difficulty of obtaining drug testing and approval for services in Mexico.
At this point, Ciera all but disappeared from the record for nearly 8 months. The only bits of news about her were that she had her baby in November 2015 and that her visits with David, Jr. were reportedly going well. No details of the visits were provided.
In the meantime, David, Sr. was taking classes and going to meetings and therapy sessions in Mexico and having almost daily conversations (telephone and Skype) with David, Jr. He had to quit his job in order to go to classes and therapy sessions, leaving him unable to pay for drug tests.
Most of the record between September 10, 2015, and April 2016 deals with David, Sr.’s struggles to get his drug tests in Mexico paid for. He paid for some of them from his own pocket, but he was not able to keep funding these tests, for which the court had ordered SSA to pay. At a hearing in October, SSA stated that David, Sr. had to pay for his services.
The six-month review hearing, originally scheduled for January 6, 2016, took place on February 23, 2016, over a year after David, Jr. had been detained. SSA recommended continuing David, Sr.’s reunification services with an expectation that David, Jr. would ultimately live with his father in Mexico. At the hearing, Ciera’s counsel asked for an increase in visitation, which the court authorized SSA to assess.
The interim report of February 22, 2016, does not mention Ciera. The court found that efforts to place David, Jr. with siblings were not appropriate. It also found David, Sr. was David, Jr.’s presumed father and that it was likely that David, Jr. would be returned to his father’s custody within six months. The matter was scheduled for the 12-month review on April 21.
As of April 21, 2016, SSA’s recommendation was to give custody to David, Sr.
Ciera resurfaced at the end of April 2016 with a petition under Welfare and Institutions Code section 388. In this petition, Ciera asked for family reunification services, or David, Jr.’s return to her under a family maintenance plan, or a trial release. She also requested liberalized unmonitored visitation.
The section 388 motion was supported by a declaration of Ciera’s counsel on information and belief that Ciera had completed a six-month program at Heritage House in March 2016, after which the new baby was released from foster care to her on April 6, under a Conditional Release to Intensive Supervision Program (CRISP) agreement. After completing the Heritage House program, counsel was informed and believed, Ciera signed up for a 16-week outpatient drug program. Various letters and certificates from Heritage House were attached as exhibits to the attorney’s declaration.
Perhaps recognizing how little information the court had about Ciera’s relationship with David, Jr., SSA filed an “ex parte application and order” on April 28, the same day as the hearing on the section 388 motion, giving the first details about visitation in months. SSA reported that the visits were proceeding “with very minimal cancellations or rescheduling.” The description repeated verbatim the meager details that had been provided twice before, about Ciera playing with David, Jr. and watching movies with him, with the added information that when she laid down on the floor to watch a movie, she had to be reminded to “please stay awake.” Regarding a specific visit in April 2016, after the new baby was released to Ciera, SSA reported that she brought him to a visit. The baby was fussy, and Ciera had to pay attention to him, with the result that David, Jr. put things in his mouth several times unbeknownst to Ciera. Again the staff had to intervene. During this visit, Ciera also spent “a lot of time” on her phone, leaving David, Jr. unsupervised.
SSA did not request an order to go with the application. It merely asked the court to “take note of this information.”
On April 28, after oral argument, the court denied Ciera’s request for a hearing on the section 388 motion on the ground that she had not presented sufficient evidence of changed circumstances to warrant a hearing. The court observed that while Ciera could make good progress with her programs and sobriety with one child, it did not follow that she could handle both an infant and a two-and-a-half-year-old. The court granted the request to assess Ciera’s sister, Ashleigh, as a monitor for the visits with David, Jr.
An interim report dated May 12, 2016, continued to report favorably on David, Sr.’s plans to reunify, including his employment prospects, his support system for David, Jr., his therapy, and his attendance at AA meetings. SSA continued to recommend custody for David, Sr. The report did not mention Ciera. The 12-month review hearing was supposed to be held on that date, but it was continued because David, Jr. needed new counsel.
The 12-month review hearing, rescheduled for June 14, was continued for another month to give Ciera’s counsel a chance to review documents produced in discovery. The hearing actually took place two weeks after that, on July 28. Once again, SSA recommended, in the June 14 and July 14 reports for the review, that David, Sr. obtain custody of his son, praising his efforts to comply with the reunification program.
The June 14 report did not mention Ciera. The July 14 report repeated the generic information regarding the visits that had been given in previous reports and added that Ciera brought the new baby to visits. David, Jr. got along well with the new baby. The report also discussed at some length changing the place and monitoring of the visits.
On July 14, 2016, Ciera filed another section 388 motion, asking for David, Jr.’s return to her and family maintenance services. The motion was once again supported by a declaration of Ciera’s counsel on information and belief, updating the court on events since the previous section 388 petition – the one denied without a hearing in April. The exhibits included an addendum report dated June 1 regarding Ciera’s program with the new baby.
The addendum report of July 28, for the 12-month review hearing, continued to recommend custody for David, Sr. Regarding Ciera’s visits, the report repeated verbatim information given in the July 14 report.
The hearing on July 28, 2916, which was supposed to encompass Ciera’s section 388 motion and the 12-month permanency hearing, touched on a wider range of topics. Among the issues discussed were amending David, Jr.’s birth certificate to add David, Sr.’s name as the father, so he could get services in Mexico; giving Ciera family reunification services for David, Jr. seeing as how she was already receiving family maintenance services for the new baby; and increasing Ciera’s visits with David, Jr. SSA reiterated its position that the ultimate goal was to reunify David, Sr. with his son. After some heated discussion, the outcome was (1) Ciera would cooperate with the amendment to the birth certificate and (2) she would receive family reunification services and increased visitation. The 12-month review was continued again.
SSA submitted an addendum report for the September 1st 12-month review. Details were provided regarding the amendment to David, Jr.’s birth certificate and the process of securing services in Mexico once reunification occurred. SSA also reported that Ciera had missed three visits in August and had arrived late and left early on two other occasions. This report was the first one since August 2015 to give detailed information regarding Ciera’s visits. The report stated that Ciera “has a difficult time managing both small children” and observed “that [David, Jr.] does not seem to respect [Ciera] as an authority figure as he does not follow her instructions and [Ciera] has to ask Orange County Child Abuse Prevention Center staff to help her with getting David[, Jr.] to comply with her directions.” Several examples of David, Jr.’s behavior were provided, as well as incidents in which one child was left to fend for himself while Ciera concentrated on the other.
At the September 1 hearing, an issue of some kind was raised regarding Ciera’s counsel’s request for discovery. There is no discovery request from Ciera in the record around that time period, so we cannot assess the problem’s seriousness. The 12-month review was reset for September 14, over David, Sr.’s counsel’s strenuous objections, based on the amount of time the matter had been dragging on.
No review hearing took place on September 14. The matter was continued to September 20. No review hearing took place on September 20. The matter was continued to October 6.
The 12-month review hearing got underway on October 6, 2016. By this time, it was also the 18-month review hearing. Additional testimony took place on October 14, 17, 18, and 19. Two social workers testified: the current one and the former one. Ciera’s sister, Ashleigh, who was supervising visits between Ciera and David, Jr. also testified.
The juvenile court issued its ruling on October 24, 2016, after oral argument. The court ruled that SSA had not carried its burden to show substantial risk of detriment if Ciera regained custody of David, Jr. Her focus on one child at a time and her drug history did not create a present risk of detriment to him. The court found that “both parents are now able to safely parent this child” and therefore turned to David, Jr.’s best interests to determine who should get custody. In the court’s view, David, Jr.’s relationship with his younger half-sibling tipped the balance in favor of custody for Ciera, under a family maintenance plan.
The court ordered “enhancement services” for David, Sr. “including random drug testing, until the case is dismissed.” After a discussion regarding continued visitation between David, Sr. and David, Jr., the court ordered SSA to assess visitation in light of the new circumstances and set a case plan review hearing for November 14.
DISCUSSION
David, Sr. has identified three issues for this appeal. First, he contends substantial evidence does not support the juvenile court’s determination that SSA did not carry its burden to show detriment under section 366.22, subdivision (a)(1), with respect to Ciera. Second, the court abused its discretion by deciding that returning David, Jr. to Ciera’s custody was in his best interests. Finally, the juvenile court improperly delegated visitation to SSA.
We address the last issue first. The court ordered SSA to prepare a visitation plan for David, Sr. at the end of the hearing on October 24, since the previous visitation plan – monthly visits in Mexico organized by the grandparents/foster parents – would have to be revised after Ciera regained custody. After the court issued its ruling, counsel and the court discussed visitation at some length. The upshot was that SSA would assess the visitation situation in light of the new circumstances and prepare a new case plan. The court then set a hearing on November 14 for the case plan review.
The juvenile court cannot delegate its authority to determine whether a parent will or will not receive visitation. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T).) It can, however, ask SSA to devise a plan and manage the plan’s details, such as time and place. (See Moriah T., supra, 23 Cal.App.4th at p. 1377; see also In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) That appears to be what happened here. The court did not tell SSA to decide whether David, Sr. would be allowed to visit. It told SSA to make an assessment, which would then be reviewed with the rest of the case plan at a hearing in three weeks, along with counsel. As of the end of the hearing on October 24, SSA was going to make a recommendation, which would be reviewed in November. We see no abuse of discretion here.
The other two issues – detriment and best interests – are not so easily dealt with. We review the juvenile court’s decision regarding detriment under section 366.22, subdivision (a)(1), for substantial evidence. (In re E.D. (2013) 217 Cal.App.4th 960, 966; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.) This means we reverse only if there is not substantial evidence to support the court’s determination that SSA did not carry its burden to show detriment. We review the juvenile court’s determination of a child’s best interests for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)
Before we discuss detriment and best interests, we need to address the case as it stood when the court made its October 24 ruling. The record before us indicates that some important principles of juvenile dependency were either ignored or disregarded. Among them are the timing and the purpose of the 12-month and 18-month reviews and the provision of family reunification services.
Because of the significant delays, the 12-month review and the 18-month review took place at the same time. While some delay is unavoidable, given the heavy caseloads of both our courts and SSA (see Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 195), a delay of this magnitude seriously skewed the determinations that were supposed to take place at each step of the pre-termination process for a child under the age of three, as David, Jr. was.
As the court explained in Tonya M. v. Superior Court (2007) 42 Cal.4th 836 (Tonya M.), the Legislature added subdivision (e)(3) to section 366.22 in 1995 to address a specific problem. “Existing law failed to ‘differentiate between the status needs of the very young child with limited parental relationship and that of the older child who has more of an ongoing parent-child and community relationship. As a result, infants and toddlers [had to] remain in foster care for at least one year, even if the parents [made] no concerted effort to re-unify.’ [Citation.] Moreover, ‘[m]ost cases receive[d] re-unification services for the maximum 18 months.’ [Citation.] A central purpose of Assembly Bill No. 1524 was to establish a second, expedited track for children under three years of age. As the bill’s sponsor, the California Department of Social Services, had argued, ‘very young children entering the public foster care system require a more timely resolution of a permanent plan because of their vulnerable stage of development. [The sponsor] believes that, given the unique developmental needs of infants and toddlers, moving to permanence more quickly is critical.’ [Citation.]” (Id. at p. 846.)
For a dependent child under three in foster care, the 12-month review hearing is a watershed event. Assuming the parent has not bungled the reunification plan (see § 366.21, subd. (e)(3)), the review that takes place at 12 months makes a critical determination – return the child to the parent or end services and set up the hearing for what could turn out to be termination of parental rights and adoption. (See § 366.21, subd. (g)(4).) If, but only if, the permanent plan at 12 months is the return of the child and his or her safe maintenance in the home and there is a substantial probability that the child will be returned to the parent within another six months, then “court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent . . . .” (§ 361.5, subd. (a)(3)(A).)
The delay had profound effects in this case. The permanent plan at 12 months (April 2016) was to give custody of David, Jr. to his father, not to Ciera. There was virtually no probability that David, Jr. would be returned to Ciera at that time. She had just finished her residential Heritage House program, part of her probation, and had only just enrolled at Mariposa. She had been testing clean for slightly more than 6 months after 15 years of heavy drug use. The new baby had just been released to her under a CRISP agreement, so there was no sibling relationship to speak of between the baby and David, Jr. She had been bypassed for family reunification services. As of April 2016, there would have been very little possibility of ordering more services for Ciera. Delay here complicated the trial court’s job immeasurably.
One danger inherent of protracted delay is that the initial reasons for detention may be lost in the mists of time. In July 2016, over a year after detention, the court stated, “I’m not inclined to dismiss the petition and just send the child to Mexico with the father. [¶] I’m really pleased that he has made tremendous strides to overcome his prior issues, but the mother is also making great strides. Neither one of them are perfect parents right now. But we can’t send the child to Mexico now unsupervised. It’s just not feasible in my opinion to do that.”
What was forgotten in the discussion of “tremendous strides” and “great strides” is that David, Sr. and Ciera did not start from the same place. The only documented problem David, Sr. had that even arguably affected his ability to care for David, Jr. was his use of drugs up to 2013. Ciera, by contrast, had a record of taking drugs while pregnant with another child – and of trying to end the pregnancy by dosing herself with methamphetamine, regardless of the effect on the unborn child – failing to reunify with that child because of her inability to give up drugs, giving a drug to David, Jr. at age 16 months (or at the very least allowing him access to drugs), exposing him to drug fumes, and being arrested on drug charges after losing custody of David, Jr. In addition, she admittedly had been a heavy drug user since the age of 12 – a history of 15 years by 2016. She had actively and deliberately harmed her children. David, Sr. had nothing remotely like this on his side of the ledger. The starting line for Ciera was much further back than it was for David, Sr. The fact that that Ashleigh or David, Sr.’s parents had taken care of David, Jr. for most of his life before detention was also overlooked. He had been with Ciera for only four months, at best, in February 2015.
The delay not only affected the court’s ability to order more services but also caused it to increase the delay itself. If, but only if, there is a substantial probability of return and safe maintenance within six months, the permanency review hearing may be continued to a date “within 18 months of the date the child was originally taken from the physical custody of his or her parent . . . .” (§ 366.21, subd. (g)(1).) Thus, the only ground for continuing the 12-month review hearing to 18 months in this case would have been the substantial probability that David, Jr. would be returned to his father and safely maintained in his father’s home.
If the child is not returned to the parent at the 12-month review hearing, section 366.21, subdivision (g), gives the court some choices. One choice is to continue the matter for another six months if there is a substantial probability that the child would be returned to the parent and safely maintained in the home within that time period. (§ 366.21, subd. (g)(1).) In the case of a deported parent, the court may continue the matter for six months if there is a substantial probability of return. In this instance, the court must find (1) the parent had consistently visited the child, taking into account the barriers imposed by deportation, (2) the parent had made significant progress in resolving the problems that led to removal, and (3) the parent has demonstrated the capacity to complete the objectives of his or her treatment plan and provide for the child’s safety and well-being. (§ 366.21, subd. (g)(2), (g)(3).)
Another principle that seems to have been given short shrift is the requirement that reunification services be tailored to the specific problems that led to detention. (See Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; In re K.C. (2012) 212 Cal.App.4th 323, 329 [plan must be specifically tailored to fit circumstances]; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 794 (David B.) [agency identified problems causing loss of custody and offered services to remedy problems].) This principle is founded on the constitutional right of parents and children to be together. (See Santosky v. Kramer (1982) 455 U.S. 745, 753-754; In re Marilyn H. (1993) 5 Cal.4th 295, 308.) California’s juvenile dependency process reflects the importance to the interests of both parents and children of remaining together if possible. Allocating the burden of proof on this issue to the social worker – not the parent – underlines the high priority of maintaining the family unit.
The state is committed to providing services to parents from detention up to the point where these services have proven to be ineffective. But these services must be tailored to the specific problems that led to detention. And the parent must have been given a reasonable opportunity to reunify and must have failed to take advantage of this opportunity.
The state intervenes to protect children against abuse, neglect or exploitation, not to enforce some platonic ideal of parenthood. (See David. B., supra, 123 Cal.App.4th at p. 798; § 300.02.) By extension, then, adults are presumed to be able to take care of their children unless they do something to indicate otherwise, such as give marijuana to a 16-month-old. They are presumed to know what they are doing without requiring classes, certificates, or permission from the state. They also do not need to have someone overseeing and evaluating their parental skills – and approving them – before they can assume a parental role. That seems to have been lost sight of here.
Finally, the Legislature has recognized that some parents are deported and has made provision for reunification services for these parents. Section 361.5, subdivision (e)(1)(E), provides that reasonable reunification services to deported parents include, but are not limited to, “[r]easonable efforts to assist parents who have been deported to contact child welfare authorities in their country of origin, to identify any available services that would substantially comply with case plan requirements, to document the parents’ participation in those services, and to accept reports from local child welfare authorities as to the parents’ living situation, progress, and participation in services.”
With respect to David, Sr., none of these principles was followed. The 12-month review hearing at which the return of David, Jr. to his father’s custody was supposed to be decided, dragged on for another six months, even though David, Sr. had by the end of 12 months complied with every demand placed on him. Rather than presuming David, Sr. to be entitled to the custody of his son unless SSA proved detriment, the assumption was that he had to prove his worthiness, by completing the various tasks SSA had set for him, regardless of their foundation in either fact or evidence. It must be recalled that the sole allegations against David, Sr. in the amended petition were failure to support and failure to protect. The allegations that he failed to establish a relationship with his son or to support him were disproved over and over, from the very beginning. And of course he was not in a position to protect David, Jr. from Ciera, because he had been deported. He himself was never accused of endangering David, Jr. because of his drug use, as she had been. (Cf. In re Priscilla A. (2017) 11 Cal.App.5th 551, 562 [risk of harm must be result of failure or inability on parent’s part].)
Although neither the original nor the amended petition included allegations that David, Sr.’s substance abuse had placed David, Jr. in danger of suffering serious physical harm or illness, David, Sr.’s history indicated an issue with drugs that needed to be addressed. And it was addressed. He stated he had not used drugs since before his deportation in 2013. All his tests were negative. His counsellors stated that he was not using drugs. There was not one scrap of contrary evidence in this record. Moreover, a drug user is not necessarily a drug abuser. (See In re Drake M. (2012) 211 Cal.App.4th 754, 764-766.) By the time of the review hearing in October 2016, the evidence indicated he had not used drugs for over three years.
Nevertheless, SSA continued to insist that David, Sr. needed “services” before he could have custody, and it is a measure of David, Sr.’s commitment to his son that he had participated in services, even though there were no allegations in the petition to support them and no evidence that he needed them. Whenever SSA presented David, Sr. with a hoop, he jumped through it, no questions asked, regardless of whether the order to jump was justified. For example, he went to AA meetings, even though nothing in the record indicated he had an alcohol problem, not even a DUI conviction to go with his unsafe lane change and speeding tickets. Use of alcohol places a child at risk only if it interferes with the parent’s ability to care for a child. (See In re James R. (2009) 176 Cal.App.4th 129, 137.) There was no allegation of any such risk, and no evidence of it in the record either. Similarly, nothing indicated that David, Sr. needed a parenting class, although he took one anyway.
Here, too, the system failed David, Sr. Section 361.5 required SSA “to identify any available services that would substantially comply with case plan requirements[.]” (§ 361.5, subd. (e)(1)(E).) Instead, David, Sr. was left to scramble about on his own to find programs of which SSA would approve, without any assistance from SSA. And when he did find them, he was entangled in the most serpentine of bureaucratic red tape.
The drug testing debacle stands out for special notice. Months were spent – and reviews delayed – trying to arrange payment for drug tests in Mexico, as if this were the first time such tests had ever been necessary. Although David, Sr. was ordered to test in July 2015, it was not until December that procedures were put in place to make regular payments to the Mexican testing lab. And even then, the procedures did not work. At one point, the accounting department told the social worker that the Mexican lab had to submit a W8BEN form to be reimbursed. The social worker dutifully emailed the form to the lab, and the lab dutifully filled it out and returned it to the social worker, who submitted it to accounting. “No,” said accounting, “the correct form is W8BNE.” So the whole process had to be restarted, in January 2016. Later, a check intended to pay the Mexican lab was returned because the amount was in dollars, not pesos.
In February 2016, David, Jr.’s counsel referred to this runaround as a “comedy of errors.” We grasp the “errors” part, but the comic aspects escape us, as we’re sure they did David, Sr.
Because the Mexican lab had not been paid as of October 2016, it refused to release the results of the drug tests for which money was still owing. So at the 18-month review hearing, the court had the results of far fewer tests than David, Sr. had undergone. It looked as though David, Sr. had shirked his testing.
Then there was the amendment to David, Jr.’s birth certificate so that his father could receive services in Mexico. Although the court found David, Sr. to be the presumed father in February 2016 and SSA recommended returning David, Jr. to his father in April, the ball to amend the birth certificate to include his name as father did not start to roll until the end of July, at which point the court was told it would take four to eight months to get an amended certificate. This information naturally gave the court considerable pause regarding the feasibility of reunifying father and son.
In fact, once the paperwork was in order, after a false start or two, the process took less than a month. From the time the matter was first raised in court until the amended certificate was issued – two months. The certificate was not filed with the court until nearly a month later, after the 18-month review hearing.
This was the state of affairs when the combined 12-month/18-month review hearing got underway in October 2016. After hearing testimony from the current and former social workers and from Ciera’s sister, the court decided that SSA had not carried its burden to show detriment for either parent. Although the social workers continued to recommend custody to David, Sr. they did not see any immediate danger of Ciera’s relapsing into drug use. As for being unable to handle both children at once, Ciera was to receive in-home education for this problem. Thus substantial evidence supported the court’s decision that the two main obstacles to reunification with Ciera had been sufficiently dealt with.
It is not that there was no evidence of risk of detriment in returning David, Jr. to Ciera. But SSA had the burden of proving substantial risk of detriment, a difficult showing. The risk of detriment standard “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., supra, 123 Cal.App.4th at p. 789.) “We are looking for passing grades here, not straight A’s.” (Id. at p. 790.)
After deciding the evidence warranted returning David, Jr. to either Ciera or David, Sr. the court then had to make the difficult decision regarding which parent to choose, based on its perception of David, Jr.’s best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) And despite all we have said about how abysmally this case was handled, we review this choice for abuse of discretion, and we cannot say the court’s decision that the sibling relationship tipped the scale in Ciera’s favor “‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ [Citation.]” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
We are hard-pressed to disagree with our dissenting colleague’s analysis of the record, and we certainly share his concern about the child’s future with Ciera. But decisions about the placement of children are among those most singularly reliant upon the informed discretion of the trial court. We cannot – from the high remove of an appellate court with nothing but paper to review – convince ourselves that we know better than the judge who had Ciera before him what is best for this child.
David, Sr. argues that awarding custody to Ciera “effectively terminated the bond” between father and son, but nothing in the record supports this drastic result. Before the hearing, father and son communicated by telephone and Skype. They also had periodic visits in Mexico. Although we do not have the new case plan, the discussion at the end of the October 24 hearing indicated that telephone calls and visits would still be forthcoming. So we cannot say David, Sr.’s ability to interact with his son will be decreased from its former level. But it will never be what it would have been.
Although we are constrained by the standard of review from overturning the juvenile court’s order from the 18-month review, we are sufficiently troubled to require some modifications. First, we infer from the court’s remark that “both parents are now able to safely parent” David, Jr. (and its subsequent clarification ) that SSA also failed to carry its burden to show that returning David, Jr. to his father’s custody would be detrimental. The minute order for October 24, 2016, does not mention David, Sr. in this regard. The order must be amended to make the same findings about detriment for David, Sr. that the court made for Ciera.
Next, the court ordered “enhancement services” for David, Sr. without specifying what these services might entail. If these services require some compliance from David, Sr. – for example, attending some class or participating in some program – then they must be tailored to specific deficiencies, supported by facts or evidence, in David, Sr.’s ability to be an adequate parent. If we’re going to require David, Sr. to attend AA meetings, there must be some evidence he has a problem with alcohol and that it would interfere with his ability to take care of David, Jr.
Finally, among these enhancement services ordered on October 24 was “random drug testing.” The juvenile court had been informed over and over that random drug testing as that term is used in Orange County dependency matters is not available in Mexico. The court has thus set David, Sr. an impossible task. If drug testing is still necessary for David, Sr. – and this necessity must be shown to have some basis in fact or evidence – then some method of testing that is actually doable in Mexico must be devised for him.
We are acutely aware of the passage of time since the decision that is the subject of this appeal was made and that circumstances may have changed significantly over the intervening months. Accordingly we have confined ourselves to adjusting the order of October 24, 2016, to reflect the conditions present at that point in the dependency process.
Really . . . we need to do a better job on these cases.


DISPOSITION
The order of October 24, 2016, is affirmed with the following modifications:
1. The order is amended to include the following language: “There is no preponderance of the evidence at this time to make a finding that return of the child, David, to the father would create a substantial risk of detriment to David’s safety. [¶] The Court finds, after a review of all of the evidence submitted, that SSA did not meet the burden of proof with respect to the detention of the child from the father’s custody.”
2. The present eighth paragraph is modified to include the following language indicated by italics and ellipses: “Court orders enhancement services for the father, which shall be tailored to the father’s individual needs as a parent as indicated by facts and/or evidence, including . . . drug testing, if necessary, according to the drug testing services available in Mexico. Court orders SSA to create a visitation plan for the father.”




BEDSWORTH, ACTING P. J.

I CONCUR:



THOMPSON, J.
ARONSON, J., Dissenting.
The majority opinion provides a cogent and compelling summary of this case, noting the inherent pressures and difficulties placed on our overburdened juvenile dependency system, but also explaining how numerous legal and procedural missteps affected the lives of David G., Sr. (father) and his son, David, Jr. The majority describes mother’s numerous failings, including her extensive history of drug abuse and crime, and correctly applauds father’s successful efforts to overcome the many obstacles he faced in complying with his case plan. Most of the opinion focuses on these issues and correctly observes the juvenile court should not have viewed the problems of Ciera S. (mother) and father as equivalent. At this point in the opinion, one reasonably would expect the majority to reverse the juvenile court’s order returning David to mother under a plan of family maintenance. But the majority summarily concludes substantial evidence supports the juvenile court’s finding that returning David to his mother would not pose a substantial risk of detriment to David’s physical or emotional well-being. I disagree.
The majority notes there were “two main obstacles to reunification” with mother, but concludes sufficient evidence supported the juvenile court’s decision she adequately addressed these problems. The majority explains, “Although the social workers continued to recommend custody to [father] they did not see any immediate danger of Ciera’s relapsing into drug use. As for being unable to handle both children at once, Ciera was to receive in-home education for this problem. Thus substantial evidence supported the court’s decision . . . .” (Maj. opn. at p. 22.)
Evidence sufficient to support a judgment must be substantial, which is defined as “evidence that is reasonable, credible, and of solid value.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) In conducting our review, we must keep in mind the difference between no evidence and insufficient evidence to sustain the trial court’s finding. And we must view the evidence in its entirety by examining “‘the issue in the light of the whole record . . . and may not limit our appraisal to isolated bits of evidence.’” (People v. Johnson (1980) 26 Cal.3d 557, 577; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Viewing the record as a whole, I find the evidence insufficient to support the juvenile court’s decision.
Mother began using methamphetamine and marijuana at the age of 12, around 2001. In 2008, mother used marijuana and methamphetamine throughout her pregnancy with another child, C., and intentionally ingested methamphetamine to induce labor because she was “sick of being pregnant.” Mother failed to reunify with C. after failing to complete three substance abuse programs. The juvenile court terminated her parental rights in April 2009.
Despite losing her parental rights to C., mother continued to use marijuana and methamphetamine, and eventually registered as a controlled substance abuser (Health & Saf. Code, § 11590) in August 2012. Mother gave birth to David in October 2013. In May 2014, mother received an eight-month prison sentence for felony possession of controlled substances for sale. Maternal aunt A.S. began caring for David.
David returned to mother in December 2014 after her release from prison. But just two months later, in February 2015, mother fed 16-month-old David a marijuana brownie to get the child to sleep. The maternal grandfather told SSA mother abused methamphetamine and often left David unsupervised. A roommate reported David cried constantly, mother yelled at the child and did not know what to do with him, often closing her bedroom door and allowing David to roam around unsupervised. The roommate felt it would be a “tragedy” to leave David with mother.
Mother’s extensive criminal history included numerous drug-related convictions. She admitted she did not “know how to cope with things” and “like[d] being institutionalized because she d[id] not have to think about what to do.” Mother informed SSA her drug of choice was methamphetamine and she used it approximately every two days. She admitted using methamphetamine, marijuana, and beer throughout her pregnancy with David, who was taken to the children’s hospital, tested positive for marijuana (THC), and exhibited withdrawal symptoms, including irritability and inconsolable crying.
Authorities arrested mother for possession of a methamphetamine pipe hidden in an air vent in the room she shared with David. A month later, authorities arrested mother for possession of controlled substances for sale. David’s visits with mother in jail did not go well. The child sat quietly, did not make much eye contact with mother, and pulled the visitation phone away from his ear.
At the July 2015 jurisdictional and dispositional hearing in David’s case, mother waived her rights and pleaded no contest to the petition. The juvenile court denied mother reunification services. (§ 361.5, subds. (b)(10), (11), (13).) The court ordered six hours of weekly monitored visitation for mother after her release from custody. David was placed with his paternal grandparents.
In July 2015, mother advised SSA she intended to enter the Heritage House residential drug treatment program after her release from custody in September 2015. In November 2015, mother gave birth to another baby boy, Kenneth. She continued monitored visits with David, which SSA described positively.
On April 28, 2016, the juvenile court denied mother’s section 388 petition claiming her changed circumstances required the court to modify its earlier orders and either return David to her, allow her reunification services, or liberalize her visitation. The court summarily denied the section 388 petition, explaining circumstances were only “changing.” But three months later the court granted her second section 388 petition, ordered reunification services, and increased monitored visits with David to ten hours per week. The court continued the 12-month review to August 31, 2016, over father’s objection.
The visitation monitor reported mother had “difficulty in managing two small children at one time.” Social worker Lourdes Vasquez came to the same conclusion after watching mother during a visit with David, and mother acknowledged her difficulty in managing her children at the same time. Vasquez recommended returning David to his father. So did social worker Donny Simpson, who acknowledged mother was complying with her case plan and had no recent positive drug tests, but explained mother had four to five weeks left before completing her drug program and would then need aftercare and a 12-step program to prevent a relapse. Simpson further explained mother’s lengthy drug history, her failure to complete three previous drug programs, and the fact she only recently began to receive reunification services led him to conclude the court should not return David to mother.
Given the lengthy history and severity of mother’s substance abuse problem, her pattern of abusing and neglecting her children due to substance abuse (ingesting drugs to induce labor, feeding drugs to a baby to calm him down), her repeated failure in three previous drug treatment programs, the relatively short period of reunification services supplied to mother in this case – approximately three months from July 28, 2016, when the court granted mother’s section 388 petition – and the complete absence of evidence demonstrating mother could care for two young children without supervision, the record as a whole does not support the juvenile court’s no-detriment finding.
Importantly, the applicable standard does not await actual injury or death to a dependent child, nor requires SSA to prove inevitable detriment, but rather a substantial risk of harm. (Welf. & Inst. Code, § 361.5.) That risk is plainly manifest here. Mother had not completed her outpatient drug treatment program at the time the court ruled in October 2016. While mother’s emerging sobriety and completion of the Heritage House program is laudable, her previously intractable substance abuse problem poses an enormous danger. Nothing suggests she resolved it in such a short time. I believe the court acted prematurely by failing to await completion of the Mariposa drug program, plus a period of aftercare and progress in a 12-step program. Both social workers opined mother needed to complete her case plan before the court could safely return David to her physical custody.
It bears emphasizing that at the time of the review hearing in October 2016, mother still required a visitation monitor. She did not pass or even take the intermediate step of a conditional release of both boys to her care under intensive supervision. The court jumped from monitored and supervised visitation to returning the child to mother, completely bypassing unmonitored visits or a trial visit. As recently as September 2016, mother had difficulty managing both boys together. Mother never had an extended period with David, let alone with both boys. Even the maternal aunt confirmed mother struggled to effectively supervise the boys together. Under monitored supervision, she could only concentrate on one boy, leaving the other to fend for himself. There simply is insufficient evidence showing mother had developed effective parenting skills to care for two young children, and the pressures of parenthood pose a serious risk mother will relapse. Thus, considering the record as a whole, I conclude insufficient evidence shows mother had resolved her drug abuse issues or that she could care for both her children, even with in-home education. I therefore respectfully dissent from the court’s opinion.



ARONSON, J.