Filed 12/12/17 In re J.S. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




In re J.S. et al., Persons Coming Under the Juvenile Court Law.

SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

J.S.,

Defendant and Appellant.

C084348




(Super. Ct. Nos. JD237254, JD237255, JD237256)

Father of the minors appeals the juvenile court’s order continuing the minors in out-of-home placement, claiming there was insufficient evidence to support the court’s finding of detriment barring return of the minors to his custody (Welf. & Inst. Code, § 366.21, subd. (e) ). We conclude the basis relied upon by the juvenile court to find detriment lacks the necessary specificity for us to determine whether that finding is supported by substantial evidence without further clarification and explanation by the juvenile court. Accordingly, we will reverse and remand for further proceedings.
BACKGROUND
In May 2016, the minors, J.S. (age three), Jon.S. (age six), and Jos.S. (age nine) were removed from father’s custody after he was found running down the middle of the street, acting erratically, and under the influence of methamphetamine. He had left the minors unattended in a locked hotel room in Reno, Nevada for an unknown period of time. Father was arrested for felony child endangerment and incarcerated in Reno, Nevada. The minors were temporarily detained in foster care in Nevada while social workers and tribal representatives explored possible jurisdiction in Sacramento County, where father and the minors lived.
On May 19, 2016, the Sacramento County Department of Health and Human Services (Department) filed dependency petitions alleging the minors came within section 300, subdivision (b), due to father’s untreated substance abuse problem from which he failed or refused to rehabilitate. The petition alleged father used methamphetamine four to five times a week, last used methamphetamine on May 5, 2016, actively used drugs for the majority of his adult life, and believed he had a substance abuse problem that was “out of control.” It was further alleged father had previously completed informal supervision services to treat his substance abuse issues in June 2015, 11 months before the current incident leading to the minors’ removal from his custody.
The detention report noted father had full custody of the minors. Their mother had no involvement with the family and was a substance abuser herself. Father and the minors had been living with the paternal grandparents for two years. Father, who was incarcerated in the mental health unit of a Nevada jail following his arrest on child endangerment charges, stated he was bipolar and suffered from posttraumatic stress disorder. He admitted he had not been engaged in mental health treatment for over a year and was not taking any medication. He stated he was overwhelmed and “just not in a good place.”
According to Sharon Votaw, the social worker who supervised father’s previous case plan that began in August 2014 and was successfully completed in June 2015, father tested negative for drugs throughout the case, completed a drug treatment program, met with the social worker, and stayed in contact at all times. Votaw was “shocked” to hear father was using drugs again, and noted father’s mental health was never discussed nor did it become an issue during the case and father was never assessed for mental health issues or symptoms. Votaw noted father completed informal supervision with no concerns and did well the entire year she worked with him. Father and the minors reportedly resided with the paternal grandparents who were very supportive and appropriate with the minors.
On May 24, 2016, the Sacramento County Court accepted jurisdiction over the matter and ordered emergency detention of the minors in the home of the paternal grandparents. Thereafter, the juvenile court made findings in support of detention, temporarily placed the minors in the care of the Department, and ordered visitation to father upon his release from custody.
According to the jurisdiction/disposition report, the minors were healthy and doing well in their relative placement. The social worker reported father and the minors were previously involved in an informal supervision case plan in August 2014 after mother lost consciousness at a store parking lot with one of the minors in the car, and thereafter tested positive for methamphetamine. The case plan recommended services for father, including anger management, a domestic violence program, parenting education, and substance abuse counseling and testing. Father completed those services in June 2015.
Despite father’s incarceration in Nevada, the Department recommended services be provided to him as well, noting father “was able to meet the children’s needs in the past . . . [and] was able to take advantage of the services previously offered to him.” The Department recommended father participate in joint counseling with the minors, alcohol and other drug assessment, and substance abuse testing and treatment, and noted father had already participated in and completed anger management and parenting education.
An addendum report filed July 26, 2016 stated father, who remained incarcerated in Nevada, confirmed he had previously completed a substance abuse treatment program and was able to maintain his sobriety until April 2016 when he relapsed and used methamphetamine. Father expressed his willingness to participate in substance abuse services again, but noted he would not be able to do so in Nevada due to medical insurance coverage limitations. He hoped to be released from custody in Nevada soon and return to engage in substance abuse treatment services in Sacramento County. Because the minors were placed with the paternal grandparents, father acknowledged he would not be permitted to reside with the paternal grandparents upon his return to Sacramento, and stated he would be staying with his sister in Brentwood. He had no concerns regarding the minors’ continued placement with the paternal grandparents.
On July 28, 2016, pursuant to the mother’s membership in the Shingle Springs Rancheria, the tribe intervened in the proceedings on behalf of the minors. The juvenile court ordered preparation of an Indian Child Welfare Act (ICWA) expert report and continued visitation as previously ordered. The ICWA expert report, prepared by social worker Richard England, Sr., concluded placement of the minors with the paternal grandparents was the most appropriate and positive placement, and “within the ICWA relative placement preference.” It was also noted the minors “have a very strong relationship with their paternal grandparents and are very closely connected to them.” England concluded it was important for both parents to take responsibility for their behaviors and work toward addressing their substance abuse issues, prioritize the minors’ needs, and provide the minors with an appropriate environment. England acknowledged the bond between the minors and their father, and was hopeful father would engage in services to address his substance abuse issues upon release from custody. An addendum ICWA expert report prepared by England on August 30, 2016 reiterated the conclusions in the original report.
On September 15, 2016, the parents submitted to, and the juvenile court sustained, the allegations in the first amended petitions. The court adjudged the minors dependents of the juvenile court and found all three minors to be Indian children within the meaning of the ICWA. The court also found, by clear and convincing evidence, that there was a substantial danger to the minors’ physical health, safety, protection, or emotional wellbeing if returned to the parents’ custody, and no reasonable means of protecting them without removal therefrom. The court ordered removal of the minors, and reunification services for both parents.
According to the prepermanency review report filed February 27, 2017, father had been released from custody in Nevada and moved into transitional housing in Sacramento, California in August 2016, and was currently residing in a “confidential residence.” He successfully completed outpatient services with National Council on Alcoholism and Drug Dependence from August 2016 through January 2017. Father made efforts to participate in joint counseling, but struggled to make contact with the provider. He was employed remodeling and repairing homes, and was required to work out of town from time to time.
Father was reportedly compliant with dependency drug court requirements in September 2016. He was noncompliant in October 2016 due to not “completing required meetings.” He was fully compliant in November 2016, but failed to make contact and test in December 2016. Father also reported his noncompliance in December was caused by his working out of town and being unable to return in time for testing. Due to his noncompliance, father was required to restart dependency drug court. Since then, father had reportedly been compliant.
The minors were generally healthy, despite that Jos.S. had broken his wrist during a physical altercation at school, and were meeting developmental milestones. J.S. enjoyed school and had no noted behavioral concerns. Jos.S. and Jon.S. enjoyed school as well. Despite some behavioral concerns, Jos.S. was making significant improvement and was having fewer angry outbursts and aggressive behaviors. J.S. was emotionally stable. Jos.S. and Jon.S. initially had significant difficulty in appropriately expressing their emotions and identifying triggers to impulsive behaviors, both had made consistent improvements over the past three months.
The minors were doing well in placement with the paternal grandparents. They maintained a strong and appropriate bond with their grandparents and were reportedly “well behaved.” The grandmother reported she tried to keep the minors busy and engaged, and gave them daily responsibilities and chores in the home.
Generally, father’s visitation with the minors was appropriate. Father transitioned from supervised visits to observed visits in October 2016, and from observed visits to unsupervised visits in December 2016.
The Department assessed the risk to return the minors to father was “low . . . as he has appropriately mitigated and addressed concerns that led to the Department’s involvement.” However, the Department noted father had “not established appropriate housing” and did not “currently ha[ve] the means to adequately take care of the children.”
The Department noted, “father has consistently been compliant with the Court ordered case plan,” “is willing and invested in creating a healthy lifestyle and environment, and maintains his sobriety,” “is consistently honest and receptive to support in appropriately parenting and caring for the children,” and “remains future focused and continues to demonstrate positive changes in his behaviors and perception to address the Department’s concerns,” but “has not established appropriate housing or currently ha[ve] the means to adequately take care of the children.” The Department recommended continued out-of-home placement of the minors, and an additional six months of reunification services for both parents.
The March 23, 2017 addendum report stated the extent of progress made by father toward alleviating or mitigating the causes necessitating out-of-home placement has been “excellent,” and there was a “substantial probability” the minors would be returned to father’s home within the next six months.
Father was not present at the March 23, 2017 contested six-month review hearing. Father’s counsel, unaware of the reason for father’s absence, requested a continuance of the hearing. The court denied the requested continuance. Father’s counsel argued the recommendation of a finding of detriment was inconsistent with the Department’s assessment of risk of return of the minors to father as “low,” adding that “[t]he fact that he does not have housing alone does not create a substantial risk.”
The court adopted the Department’s recommended findings and denied father’s request to return the minors to his custody, finding there existed a substantial risk to the safety and well-being of the minors due to the fact that, while father reportedly had done “very well” with services and made “considerable progress,” he had not “established appropriate housing” or “demonstrated that he currently has the means to adequately take care of the children.” The court ordered continued out-of-home placement of the minors with the paternal grandparents, and additional reunification services to both parents.
Father filed a timely notice of appeal.
DISCUSSION
Father contends there was insufficient evidence to support the court’s finding of detriment within the meaning of section 366.21. In particular, he claims the court relied on an improper basis – father’s financial means or lack thereof – to find there was a substantial risk of detriment to the minors if returned to his custody.
The Department argues the court’s finding of detriment was supported by the fact substance abuse problems are notoriously difficult to overcome and father was in his infancy with respect to his own drug treatment. Therefore, the court’s findings must be affirmed regardless of the grounds upon which they were based.
As we explain, further clarification and explanation by the juvenile court is necessary.
At the six-month review hearing, the court must return the child to the physical custody of his or her parent unless the court finds returning 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 failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence the return would be detrimental.” (§ 366.21, subd. (e).) “[T]he court . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself to services provided.” (§ 366.21, subd. (e).)
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Jason L., at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, the juvenile court acknowledged father’s “considerable progress” with services, but observed father had “not established appropriate housing” and did not “currently have the means to adequately take care of the children.” The court concluded there was a substantial risk of detriment because father “has not demonstrated that he currently has the means to adequately take care of the children.”
Father claims neither homelessness nor poverty is an acceptable ground for a detriment finding and urges us to assume, as he does, that the court’s finding that he lacked “the means to adequately take care of the children” referred to his financial means. We recognize “poverty is not such a ground.” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1215.) However, on this record, we decline to assume the juvenile court was referring only to financial means.
Merriam-Webster’s Collegiate Dictionary defines “means” as “resources available for disposal.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 769, col. 1.) The term “resource” is defined as “a source of supply or support: an available means”; “a natural source of wealth or revenue”; “a natural feature or phenomenon that enhances the quality of human life”; “computable wealth”; and “a source of information or expertise.” (Id. at p. 1061, col. 2.) Under that definition, the juvenile court could have been referring to any number of “means” available to father to adequately care for the minors, including but not limited to housing, money, food, clothing, medicine, knowledge, compassion, fortitude, experience, and sobriety, or any combination of resources.
Assuming, without deciding, the court was referring to father’s housing and financial status, we note the following. First, the record contains scant evidence regarding father’s living arrangement. The prepermanency review report stated father moved into transitional housing in August 2016 and as of February 27, 2017, was residing in a “confidential residence” but had “not established appropriate housing.” The record contains no additional information, nor was there any discussion at the hearing, elaborating on father’s housing or whether it was suitable for the minors.
Similarly, there is little evidence illuminating the state of father’s finances. The prepermanency report noted father was employed with a company that remodeled and repaired homes, had a monthly income between $1,400 and $1,800, and was periodically required to work out of town. There was no discussion in the Department’s reports or at the prepermanency hearing regarding father’s financial status, whether his salary enabled him to make ends meet and provide for his own needs, or whether he could provide the basic necessities for the minors.
The Department argues the court could have relied on the issue of father’s substance abuse and the fact his sobriety was in its infancy as a sufficient basis upon which to find detriment. In that regard, it was reported father successfully completed outpatient alcohol and drug services on January 31, 2017, but was not always compliant with dependency drug court and, in December 2016, was required to restart the program. While he was thereafter reportedly compliant, it does not escape our consideration that he was previously provided substance abuse counseling and testing services in August 2014 and successfully completed those services in June 2015, only to relapse 11 months later in May 2016 in a manner that placed himself and the minors in danger of serious physical and emotional harm.
While there may be a valid basis for the juvenile court to make a finding of detriment on the fact father’s sobriety was not yet certain, the court never made that finding, let alone by the required clear and convincing standard. We may not make that finding here or infer such a finding. “ ‘[A] finding of detriment . . . asks this court to act as petitioner and fact finder, thereby denying [father] an opportunity for notice of specific charges and an opportunity to respond to the charges against him. [Citation.]’ ” (In re Frank R. (2011) 192 Cal.App.4th 532, 539, quoting In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849 [where juvenile court never made a finding of detriment, due process prohibited termination of parental rights pursuant to section 366.26].) If a trial court has failed to make express findings, “the appellate court generally implies such findings only where the evidence is clear.” (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825, italics added [appellate court refused to make an implied finding under section 361.2, subdivision (a), whether placement with a noncustodial parent would be detrimental].) As discussed above, this is not one of those cases.
Because the basis relied upon by the juvenile court to find detriment lacks the necessary specificity, we cannot determine whether that finding is supported by substantial evidence without further clarification and explanation by the juvenile court. Accordingly, we will reverse and remand with instructions that the juvenile court clarify and explain its finding that it would be detrimental to return the minors to father.
DISPOSITION
The judgment is reversed as to the juvenile court’s dispositional order finding return of the minors to father’s custody would create a substantial risk of detriment to the minors’ safety, protection, or physical or emotional well-being. The matter is remanded to the juvenile court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
RENNER, J.