Filed 11/19/18 Carlos S. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Lorna H. Brumfield, Judge.

David Duket for Petitioner.

No appearance for Respondent.

Mark L. Nations, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner Carlos S. (father), seeks an extraordinary writ from the juvenile court’s orders issued at a contested 12-month review hearing terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1] as to his now three-year-old son, Noah. He contends the juvenile court should have either returned Noah to his custody or continued reunification services to the 18-month review hearing. We deny the petition.

PROCEDURAL AND FACTUAL STATEMENT

One-year-old Noah was taken into protective custody in April 2017 after father and Noah’s mother, Y.V., (mother)[2] were arrested for being under the influence of methamphetamine and for child endangerment. Mother was acting strangely and hitting herself in the face. The family home was cluttered and smelled of marijuana. There was only a gallon of milk and no edible food for Noah. The Kern County Department of Human Services (department) placed Noah in foster care.

Father told the investigating social worker he was arrested in 2016 on drug-related charges and ordered to complete substance abuse treatment. He was successful in maintaining his sobriety until two or three months before when mother began exhibiting signs of mental illness. She accused him of being unfaithful and was hearing voices. He was ready and willing to do anything necessary to achieve sobriety.

The juvenile court ordered Noah detained and, at a combined jurisdictional/dispositional hearing in June 2017, exercised its dependency jurisdiction, removed Noah from parental custody and ordered the parents to participate in substance abuse, child neglect and parenting counseling and submit to random drug testing.

In October 2017, father petitioned the juvenile court under section 388 to modify its prior order and place Noah in his custody with family maintenance services. As changed circumstances, father alleged he completed counseling programs in parenting and substance abuse and tested negative for drugs. Placing Noah with him in a safe and loving home, he asserted, would serve Noah’s best interest.

The department opposed father’s section 388 petition because he was not drug testing and admitted using marijuana. The department was also concerned he would not prevent mother from having unauthorized contact with Noah.

The juvenile court denied father’s section 388 petition at a hearing in November 2017. Approximately a week later, father’s social worker met with him to discuss his positive test results for marijuana from a sample submitted late the month before. He said he had been depressed since the court denied his section 388 petition. Two weeks after meeting with the social worker, he tested positive for methamphetamine. On December 11, 2017, father enrolled in outpatient substance abuse counseling.

By December 2017, mother had also completed a parenting class and enrolled in substance abuse counseling. However, she failed to drug test and tested positive for methamphetamine five times between July and November 2017. She was referred for inpatient treatment but did not follow through. In addition, she did not interact much with Noah during visits and cried in frustration when she did not know how to handle him. Father was inconsistent in visiting Noah but the visits were of high quality. Consequently, the department advanced him to unsupervised visits.

In February 2018, at the six-month review hearing, the juvenile court continued reunification services for father but terminated services for mother. During a visit that month, father told the human services aide who supervised the visit that he had a medical marijuana card.

In May 2018, social worker Rebekah Scroggins met with father at his home where he resided with his two sisters and his sister’s two small children. The home was furnished and in working order and there was food in the refrigerator and pantry. Scroggins mentioned that father’s drug test results were all positive for marijuana and asked if he planned to stop using it. He said he needed it for anxiety and did not plan to stop but would when Noah was returned to his custody. Scroggins also spoke to father’s case manager about his progress in substance abuse counseling. She said he had not attended any group sessions since March and was not very interested or involved. He was expected to complete the program in October.

The department recommended the juvenile court terminate father’s reunification services at the 12-month review hearing because of his continued use of marijuana and minimal participation in substance abuse counseling.

Father testified at the contested 12-month review hearing on August 6, 2018 and asked the juvenile court to either return Noah to his custody or give him more time to complete his services. He was participating in substance abuse counseling and scheduled to complete it on time. He did not have a sponsor or attend Alcoholics/Narcotics Anonymous (AA/NA) meetings because he worked. He obtained a medical marijuana card four or five months before for depression caused by Noah’s removal. He used marijuana twice a month in the backyard away from the children. He would keep the marijuana locked up if Noah were returned to his custody and have his sisters take care of Noah while he used it. He acknowledged using methamphetamine in November 2017, explaining he was disappointed because the court denied his section 388 petition. He had not used since and no longer coped with disappointment by using methamphetamine. Instead, he watched YouTube or talked to other parents from his substance abuse counseling classes about his situation. He also distracted himself through his work. Asked whether he considered counseling to deal with his depression, he said he did but preferred medicinal marijuana. If Noah were returned to his custody, he would live with father in the four-bedroom house father shared with his sisters. Noah would sleep with him in the master bedroom. There was also a room available for Noah when he got older and needed his own room. Noah’s aunts would babysit for him while father worked.

Father’s attorney argued there was no evidence Noah could not be safely returned to father’s custody, pointing to father’s infrequent use of marijuana and eight-to-nine- month abstinence from methamphetamine. Father also had improved coping mechanisms and the support of his sisters to care for Noah. Alternatively, his attorney argued there was a substantial probability Noah could be returned to father’s custody by the 18-month review hearing in October.

The juvenile court found it would be detrimental to return Noah to father’s custody and there was not a substantial probability he could be returned by the 18-month review hearing. The court reasoned that father’s marijuana and methamphetamine use necessitated Noah’s removal and, though father completed substance abuse counseling early in the case, he relapsed in November 2017. He was reassessed for treatment shortly thereafter but did not enroll until April 10, 2018. Upon enrollment, he tested positive for marijuana. In addition, he did not attend substance abuse counseling consistently, did not have a sponsor and did not attend AA/NA meetings. He also intended to use marijuana medicinally instead of abstaining from it as he previously said he would do if Noah returned to his custody. The court could not find father made significant progress but rather that his progress was moderate. The court terminated father’s reunification services and set a section 366.26 hearing for December 13, 2018.

DISCUSSION

Father contends the juvenile court’s findings with respect to detriment and substantial probability of return are not supported by the evidence. We disagree. When a party to a dependency proceeding contends there is insufficient evidence to support a decision, our standard of review “is the same as in other appeals on grounds of insufficiency of the evidence. We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court’s conclusions.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We do not reweigh the evidence, evaluate the credibility of witnesses, or indulge in inferences contrary to the findings of the juvenile court. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)

After declaring a child to be a dependent, the juvenile court is required to hold status review hearings to consider the feasibility of returning the child to the parents. (§ 366.21.) At each review hearing, there is a statutory presumption the child will be returned to the parents unless the court finds that doing so would create a substantial risk of detriment to the child’s safety, protection or physical or emotional wellbeing. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) If the court cannot return the child to parental custody at the 12-month review hearing, it has no choice but to terminate reunification services unless there is a substantial probability the child can be returned after an additional period of services or the parent was not provided reasonable reunification services. (§ 366.21, subd. (g).)

Here, the juvenile court found that returning Noah to father’s custody presented a risk of detriment to his safety and well being and there was not a substantial probability of return. The court also found the department provided father reasonable reunification services, which father does not challenge. We conclude substantial evidence supports the court’s findings. By the time of the hearing, father had received 16 months of services, the most critical service being substance abuse counseling. However, he had yet to demonstrate a commitment to recovery. He was not regularly attending substance abuse counseling, was not participating in AA/NA meetings and did not have a sponsor. Consequently, the court could infer that father had not resolved his drug abuse issues and it would be detrimental to return Noah to his custody.

Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, on which father relies, is distinguishable. In that case, the child, born in June 2003 with amphetamine in his system, was immediately taken into protective custody. His mother, Rita, completed a residential drug treatment program and consistently tested clean through November 2004. At the time of the 12-month review hearing, the social services agency recommended the child be placed with Rita for a 60-day trial visit. While the review hearing was ongoing, Rita’s adult daughter offered her a Tylenol with codeine, which she ingested without realizing what it was, to relieve a headache. She immediately informed the drug testing facility, her AA sponsor, and her social worker. (Id. at pp. 498-501.) The juvenile court declined to return the child to Rita’s care based solely on her one-time use of a prescription pain killer. Otherwise, the court considered Rita “a veritable superstar of the reunification process” and had planned to return the child to her custody. (Id. at p. 505.) The appellate court concluded there was insufficient evidence of detriment and granted extraordinary writ relief. (Id. at pp. 506, 510.)

Here, unlike Rita, father never demonstrated he had achieved a state of recovery. Whether one considers his “one-time” use of methamphetamine in November 2017 or his ongoing use of marijuana, he was not engaging in substance abuse counseling or attending AA/NA meetings and did not have a sponsor. Consequently, he had not sufficiently addressed his drug use such that the court could safely return Noah to his custody.

For the same reason, the juvenile court could decide there was not a substantial probability Noah could be returned to father with continued services. In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting the child’s removal, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection, and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) Father’s failure to make significant progress in resolving his substance abuse problem was sufficient to support the court’s finding a substantial probability of return did not exist. Further, given the rate at which father was progressing toward that end, it was reasonable for the court to conclude he would not resolve it in the two months remaining before the 18-month review hearing.

DISPOSITION

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