Filed 4/27/22 B.R. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Writ denied. Request for stay. Denied.

Martin Schwarz, Public Defender, Seth Bank, Assistant Public Defender, Brian Okamoto, Deputy Public Defender, for Petitioner C.D.

Juvenile Defenders and Donna P. Chirco for Petitioner, B.R.

No appearance for Respondent.

Leon J. Page, County Counsel, Karen L. Christensen, Deborah B. Morse, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Leslie A. Barry, under appointment by the Court of Appeal, for Minor.

Petitioners, parents of minor B.D., challenge the trial court’s order terminating reunification services at the six-month review hearing in B.D.’s dependency matter. Petitioners argue substantial evidence did not support the trial court’s findings that returning B.D. to either petitioner’s care would create a substantial risk of detriment to B.D., and that there was no substantial probability that B.D. would be returned to either petitioner after the rendition of additional services. We conclude substantial evidence supports the trial court’s findings on both risk of detriment and probability of return as to both petitioners. Accordingly, we deny both petitions and their requests for a stay of the upcoming hearing on termination of parental rights.

FACTUAL AND PROCEDURAL HISTORY

B.D. the third child born to mother (B.R.) and father (C.D.), was born in March of 2020. B.D. showed symptoms of withdrawal from drugs, though both B.D. and mother tested negative for drugs. Before B.D.’s birth, mother and father and their older children were the subject of a series of dependency proceedings in Orange and Los Angeles Counties involving domestic violence, drug and alcohol abuse, and neglect.

In June of 2020, B.D. was declared a dependent of the Orange County Juvenile Court. Custody was granted to mother and father under the supervision of the Orange County Social Services Agency (Agency). However, on August 12, 2020, father punched mother in the face while father was holding B.D. Mother pulled a knife on father after the punch, saying she feared for her life. Father was arrested and B.D. was removed from father’s care. The court ordered mother not to allow unauthorized visits with father.

In January of 2021, the Agency received a report from a friend of mother that father had been living with mother in violation of the court’s order. The report also indicated that father had been using methamphetamine, marijuana, and alcohol, and that mother and father drank together with the children in the home. Mother’s friend also reported that she had witnessed mother coaching mother and father’s eldest child to lie to social workers about father’s presence in the home, and had seen father pick up B.D. and “swing her.” The report that father was present in mother’s home was corroborated by mother’s landlord, who indicated mother had admitted father had been there “for the weekend,” but that the landlord believed mother was lying and had received complaints from other neighbors about father’s presence on the property. The report was also corroborated by an anonymous neighbor, who also reported hearing “yelling and screaming” between mother and father, but denied seeing either mother or father appear intoxicated.

After the Agency received these reports, it sought an order to remove the children from mother’s home, which the trial court granted. When the children were detained, the eldest reported he had been told by mother to tell the social worker he had not seen father.

In interviews after the children were detained, mother reported father used methamphetamine, marijuana, and alcohol, and was in a rehabilitation center. Mother also described father as a “good dad.” Mother’s neighbor reported mother was drinking and provided the Agency with security camera footage of mother entering her home with a box of beer and a bottle of liquor, along with another person.

In March of 2021, mother’s alcohol testing device reported a “tamper” incident, which mother explained occurred as a result of her pajama pants wedging between her ankle and the device. On May 14, 2021, mother demanded the removal of the alcohol testing device. On May 15, 2021, mother submitted to an on-demand drug test, which was positive for alcohol. Mother explained this positive test as the result of her use of an over-the-counter sleep medication, ZzzQuil. The testing laboratory indicated that use of this type of over-the-counter mediation could not create this type of positive test result. Mother had the alcohol testing device re-applied on June 4, 2021.

The six-month review hearing began on October 20, 2021. Approximately one month earlier, the social worker interviewed mother and father regarding their progress. Mother reported she was on step two of the 12-step program, but had stopped attending meetings, preferring her outpatient program. Father also reported being on step two of the 12-step program, but could not identify what that step was. Father indicated he would like to get his children back and return to mother. Approximately one week before the hearing, the social worker interviewed mother again. In this interview, mother indicated she felt the children should not have been removed, noting that father’s presence in her home in violation of the court’s order was “not that serious,” and that “there are worse things that could have happened.”

At the hearing, mother testified that: she had not consumed alcohol for years. ; she did not intend to reunify with father and had not contacted him in approximately a year ; she had attended a 12-step meeting the night before her testimony, and was on step two, but could not recall how many meetings she had attended in the prior month or what the step meant; and another woman had agreed to be her sponsor the day before her testimony.

Mother described her participation in an outpatient substance abuse program, but denied being an addict. Mother denied being presently powerless over alcohol, contending her problems with alcohol were confined to earlier years, before her children were born. Mother denied minimizing the seriousness of the violation of the court’s order to the social worker, but admitted repeatedly allowing father to visit or live in her home at various times in 2015, 2019, and 2020 in violation of various restraining orders. Mother testified she would have no concerns with father taking the children overnight for weekends, and described father as a “good dad.”

Father testified he was a recovering addict and had been clean since January 13, 2021. Father admitted abusing mother while using drugs and alcohol, but denied that the domestic violence had put his children in danger. Father testified he frequently attended alcoholics anonymous meetings, and was on step two of the 12 steps, but did not have a record of all the meetings he attended. Father stated he had consistently tested negative for alcohol, methamphetamine, and other drugs in his program, but had tested positive for marijuana for a period of time as it left his system.

Father asserted it was safe to return the children to mother, and that while he was not immediately aiming to reunite with mother, he thought he might try at some future time, after having made more progress. Father denied having contact with mother since the time his children were taken away.

Father admitted that after a prior reunification with his eldest son, in which he received full custody and mother was required to have only supervised visitation, father had violated the court order and permitted mother to see the eldest son. Father also admitted violating court orders by seeing his children when they were in mother’s care and visitation was not permitted and telling his eldest son to lie about his visits. Father testified that on one visit, his eldest son told him he did not want to be adopted and regularly told father he wanted to return to mother and father. Father testified he needed his children in his life to remain sober. Father acknowledged that he had just been “going through the motions” when participating in his domestic violence and parenting classes in connection with the earlier dependency matters involving his older children in 2015 and 2019, but contended his participation this time was more genuine.

The social worker testified: mother had delayed beginning participation in a 12-step program, and then had stopped after attending about seven meetings; mother had never acknowledged to the social worker that she was an addict, had a substance abuse problem, or needed help, and that she told the social worker that her substance abuse program was just something the court had ordered her to do, rather than something she actually needed; and she believed, based on mother’s statements and behavior (including minimization and blaming others), that mother had a pattern of attending classes with good attendance and participation, but failing to internalize those lessons and apply them in her life.

The social worker also asserted she suspected mother and father had continued contact, despite their denials. The social worker cited two principal reasons for this belief. First, mother and father had made very similar novel requests of the social workers, unprompted, at or near the same time, suggesting they were coordinating or communicating. Second, father sent a text message to a caregiver using the word “babe” and discussing money. Father told the caregiver it was an accident, and that the message was not intended for the caregiver. When the social worker asked father about the text message, father claimed his phone auto corrected the message from “bro” to “babe.” The social worker described father’s reaction to this discussion as “very upset” and “angry.” The social worker also testified that father told her he intended to get his family back together, including mother.

The social worker also described various comments mother made throughout the dependency process, in which mother did not accept responsibility, minimized the problems, or blamed the Agency, the court, or father for the situation. The social worker testified mother had missed visits and late visits with her children, and had ended visits early, and that these issues persisted throughout the dependency process. Finally, mother had a difficult time managing all three of her children at once on visits, and the caregiver frequently had to step in to avoid problems. The social worker described mother as “not consistent or reliable” in her visitation.

The social worker testified more positively regarding father’s visitation. She described father as consistent and engaged. However, he also occasionally struggled to manage all three children at once. Moreover, on one occasion, father lost his temper with his eldest son during a visit. The social worker stated father minimized the degree of harm to the children resulting from the situation, and had expressed the opinion that the problems would go away when the children were returned. The social worker testified that father had been through substance abuse treatment twice in the past and had been sober briefly after each time, but had relapsed on both occasions. The social worker stated she had interviewed the eldest son, who had denied telling father he did not want to be adopted.

At the conclusion of the hearing, the trial court found mother’s testimony that she had fully separated from father not credible. The trial court found that return to either mother or father would present a substantial risk of detriment to B.D. The trial court referred specifically to both parents’ lack of progress in sobriety, lack of understanding regarding the seriousness of their domestic violence issues, and inability to meet B.D.’s needs by having positive interactions during visits. The court also found that there was no substantial likelihood of return by the 12-month review hearing. Accordingly, the court ordered reunification services terminated as to B.D. for both parents and set the matter for a hearing on termination of parental rights.

Mother and father each filed timely notices of intent to file a writ petition, and filed timely petitions seeking a writ of mandate directing the trial court to vacate its order terminating reunification services and instead issue orders to return B.D. to mother’s or father’s custody, or in the alternative, to continue reunification services through the 12-month review hearing. Both parents also requested a stay of the hearing on termination of parental rights, presently set for May 4, 2022.

DISCUSSION

Mother and father’s positions are substantively identical: both contend there is no substantial evidence to support the trial court’s conclusions that returning B.D. to mother or father would create a substantial risk of detriment to B.D. or that there was no substantial probability that B.D. might be returned to mother or father at the 12-month review.

After a child is removed from the parents’ custody, “the juvenile court must review the case once every six months.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) “At these review hearings, there is a statutory presumption that the child will be returned to parental custody unless the court finds by a preponderance of the evidence that ‘the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.’” (Ibid.) We review the risk of detriment finding for substantial evidence. (In re E.D. (2013) 217 Cal.App.4th 960, 966.)

In cases involving a child who, like B.D., is less than three years old, “‘if “the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to [Welfare and Institutions Code s]ection 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.”’”[1] (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027 (Fabian L.).) We also review these findings for substantial evidence. (Id. at p. 1028.)

In this situation, “‘[T]here are two distinct determinations to be made. . . . . First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a [section 366.26] hearing to terminate parental rights.’” (Fabian L., supra, 214 Cal.App.4th at 1027.) Second, “‘[n]otwithstanding any findings made pursuant to the first determination, the court shall not set a [section 366.26] hearing if it finds either[:] (1) “there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . .”; or (2) “reasonable services have not been provided . . . “to the parent.’” (Id. at p. 1028.)

1. Substantial Risk of Detriment

The trial court found return to mother and father created a substantial risk of detriment to B.D. for three reasons: the parents’ lack of progress in their sobriety; their lack of understanding regarding the seriousness of their domestic violence issues; and their inability to meet B.D.’s needs, as demonstrated by their issues with visitation.

The trial court’s finding of a lack of progress in father’s sobriety is supported by substantial evidence. This is the third time father has been through substance abuse treatment, and on the prior occasions father relapsed. Moreover, father admitted only being on the second step of the 12-step program and could not identify what that step was. Father’s current 10-month period of sobriety was relatively brief in the context of his admitted lengthy history of substance abuse. While father argues his progress in his treatment program should overcome his admitted lack of progress in the 12-step program, in conducting substantial evidence review “t is not our role to reweigh the evidence.” ([i]Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 294.) The trial court concluded father’s participation in his substance abuse program was not enough to overcome his lengthy history of substance abuse and relapses, as well as the brevity of his period of sobriety and failure to progress in the 12-step program; we will not substitute our conclusion for that determination.

The trial court’s finding that the father lacked sufficient understanding of the seriousness of his domestic violence issues was also supported by substantial evidence. Father had a lengthy history of domestic violence and anger management issues; his loss of his temper with his eldest son on a visit demonstrated that his anger issues were not wholly behind him. There was also substantial evidence at trial that father intended to reunite with mother, despite both father and mother’s admission that such a situation could create a danger of further domestic violence issues. Finally, there was substantial evidence that, despite his contrary trial testimony, father continued to minimize his domestic violence problems.

The trial court’s finding that father was unable to meet B.D.’s needs was also supported by substantial evidence. The evidence demonstrated that Father was unable to manage the children, even in short visits. Moreover, Father had no significant history of meeting B.D.’s needs, as she was removed from his custody within the first few months of her life.

As to mother, the trial court’s finding of a lack of progress in her sobriety was supported by substantial evidence. Mother continued, even at trial, to refuse to admit she had a problem with alcohol. The court specifically found her excuses about her positive test and monitoring device not credible. Like father, mother failed to progress beyond the second step of the 12-step program, could not articulate what the second step was, and had obtained a sponsor only the day before the hearing.

The trial court’s finding that mother lacked sufficient understanding of the seriousness of the domestic violence issues was also supported by substantial evidence. Mother had repeatedly violated restraining orders, and continued, even as late as a week before the review hearing, to minimize the seriousness of the violation of the court’s order that resulted in her children being taken away. Even at trial, mother testified father was a good father, without any apparent concern for the domestic violence problems.

Finally, the trial court’s finding that mother was unable to meet B.D.’s needs was also supported by substantial evidence. Mother’s visitation was inconsistent and of poor quality. Mother was frequently unable to manage her children during in-person visits, was often disengaged during virtual visitation, and ended visits early.

2. Substantial Probability of Return

Mother and father both contend that, based on the same facts and evidence discussed in connection with the trial court’s finding on substantial risk of detriment, the court erred in finding there was no substantial probability of return. However, substantial evidence supports the court’s determination.

As discussed above, both mother’s and father’s issues with sobriety, domestic violence, and inability to meet B.D.’s needs are longstanding and have persisted despite various rounds of treatment, classes, and therapy. They and their children have been involved in dependency proceedings of one sort or another on a recurring basis dating back to 2015. This long history of problems and the slow progress of mother and father in remedying them supports the trial court’s conclusion that there was no substantial probability B.D. could return to them by the 12-month hearing date.

In fact, due to various continuances resulting from unavailability of counsel and the trial court’s docket congestion, the court’s determination on this point was issued on January 6, 2022, just two days short of the one-year anniversary of B.D.’s removal. As father admits in his petition, the 12-month review hearing date would have been February 24, 2022, approximately six weeks after the court’s determination. Neither parent’s petition shows the court lacked substantial evidence to conclude the situation would be sufficiently changed in this short span of time to justify a different result.

DISPOSITION

The petitions are denied.

ZELON, J.*

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All statutory references are to the Welfare and Institutions Code.