Filed 3/6/14 D.D. v. Super. Ct. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


D.D.,
          Petitioner,
v.
THE SUPERIOR COURT OF                                                A140392
SAN MATEO COUNTY,
                                                                     (San Mateo County
          Respondent;                                                Super. Ct. No. JV80426)
SAN MATEO COUNTY HUMAN
SERVICES AGENCY,
          Real Party in Interest.


          D.D., the father of dependent child F.D., petitions for extraordinary writ review of
a juvenile court order removing F.D. from father’s custody and setting a permanency
planning hearing under Welfare and Institutions Code section 366.26.1 D.D. (father)
contends: (1) there was insufficient evidence that placement with father was ineffective
in protecting F.D., and (2) the court erred in removing F.D. We conclude substantial
evidence supports the court’s determinations. Accordingly, we deny father’s petition.




          1
              All statutory references are to the Welfare and Institutions Code unless otherwise
stated.


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                                     I. BACKGROUND
A. Dependency Proceedings Before June 2013
       In April 2010, the San Mateo County Human Services Agency (Agency) filed a
dependency petition under section 300, subdivision (b), on behalf of F.D., who was then
three years old. Agency alleged father was unable to protect F.D. from her mother, who
was suffering from untreated mental illness.
       After hearings on jurisdiction and disposition in June 2010, the juvenile court
sustained the petition and declared F.D. a dependent child to remain in father’s custody
with family maintenance services, including parenting classes and counseling. The court
later ordered father, who had a history of drug use and depression, to submit to drug
testing. The court prohibited the mother from having contact with F.D. or father. The
court denied visitation to F.D.’s maternal grandmother, who had tested positive for
methamphetamines, until she tested clean and exhibited appropriate behavior.
       In late 2010 and early 2011, Agency filed a supplemental petition under section
387 and several amendments, alleging placement with father had not been effective in
protecting F.D. Agency alleged father had tested positive for methamphetamines, failed
to participate in court-ordered counseling and other services, and violated the court’s
order prohibiting contact between F.D. and the maternal grandmother. F.D. was removed
from father’s custody. The court sustained the supplemental petition and ordered
reunification services for father.
       During the period when reunification services were provided, Father made some
progress in addressing the problems that had led to F.D.’s removal. Father completed an
outpatient drug treatment program, and he tested negative for drugs. Father participated
in individual therapy sessions, as well as therapy sessions with F.D. On Agency’s
recommendation, the court ordered that F.D. be returned to father’s custody in July 2012.
F.D. remained a dependent of the court, and family maintenance services were provided.
B. The June 2013 Supplemental Petition
       In June 2013, Agency again filed a supplemental petition under section 387,
alleging placement with father was not effective in protecting F.D. Agency alleged that,


                                               2
between February 4 and June 25, 2013, father missed numerous required drug tests, and
on June 12, 2013, he tested positive for amphetamines and methamphetamines. Father
admitted he had relapsed and used methamphetamines. Father also had failed to keep
appointments for mental health and medical services required by the case plan. The court
ordered F.D. detained in foster care. Father continued to miss some of his required drug
tests in September and October 2013. In November 2013, father again tested positive for
methamphetamines.
       On November 26, 2013, after jurisdiction and disposition hearings, the juvenile
court sustained the supplemental petition, finding the previous dispositional order (i.e.,
returning F.D. to father) had been ineffective in protecting F.D. As to disposition, the
court found by clear and convincing evidence there would be a substantial danger to
F.D.’s physical or emotional well-being if she were returned to father, and there were no
reasonable means to protect F.D. without removing her. The court ordered that father
receive no further reunification services, because the statutory time lines had been
exhausted. The court set a permanency planning hearing under section 366.26 for
March 11, 2014.
       Father filed a writ petition seeking review of the juvenile court’s order and a stay
of the permanency hearing. (See § 366.26, subd. (l).) We issued an order to show cause,
and Agency filed a response.
                                      II. DISCUSSION
A. Standard of Review
       A supplemental petition under section 387 is used to change a dependent child’s
placement from the physical custody of a parent to a more restrictive placement. (§ 387;
Cal. Rules of Court, rule 5.560(c);2 In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) At
the jurisdictional stage, the court determines whether the factual allegations of the
petition are true and whether the previous disposition has been ineffective in protecting
the child. (§ 387, subd. (b); rule 5.565(e)(1); In re A.O. (2010) 185 Cal.App.4th 103,

       2
           All rule references are to the California Rules of Court.


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110.) If the court makes these findings, it then determines disposition, i.e., whether
removing the child from the parent’s custody is appropriate. (Rule 5.565(e)(2); In re
T.W., supra, at p. 1161.) Courts have held that, to remove a child from a parent’s custody
pursuant to a section 387 petition, the juvenile court must apply the standards in section
361, subdivision (c)(1), and find, by clear and convincing evidence, that “[t]here is or
would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical custody. . . .” (See In re T.W.,
supra, at p. 1163; In re Javier G. (2006) 137 Cal.App.4th 453, 462; but see In re A.O.,
supra, at pp. 111–112 [questioning whether clear and convincing evidence standard
applies to a second removal where child has previously been removed from, and then
returned to, parent’s custody].)
       We review the court’s jurisdictional and dispositional findings for substantial
evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161.)
B. Analysis
       Father contends Agency failed to show that the previous disposition was
ineffective or that leaving F.D. in father’s custody would create a substantial risk of
harm. Specifically, he asserts Agency failed to demonstrate his drug use and failure to
participate in mental health and medical services affected his ability to provide a safe
environment for F.D. We disagree.
       The juvenile court noted it based its decision on the entire history of this
dependency case (spanning more than three years), including all the reports filed by
Agency. The evidence, including these reports, supports a conclusion father did not
consistently or successfully address his substance abuse and mental health difficulties.
Father did not consistently engage in required drug testing, and multiple reports note his
missed tests, resulting in “administrative dirty” results. These failures to test make it
impossible to know the full extent of father’s substance abuse, as well as demonstrating
his inconsistent compliance with court orders. In addition, father tested positive for


                                              4
methamphetamines on multiple occasions, and in some instances admitted relapsing.
Father also demonstrated a pattern of not fully engaging in services, such as parenting
education and individual psychotherapy to address his depression, and he often missed
appointments with service providers. These failures led to the first removal of F.D. from
father’s custody in October 2010.
       Although father made sufficient progress to warrant returning F.D. to his custody
in July 2012 with family maintenance services, the same problems subsequently recurred,
leading to the June 2013 supplemental petition. As noted, between February 4 and
June 25, 2013, father missed the majority of his required drug tests, and on June 12,
2013, he tested positive for amphetamines and methamphetamines. Father admitted he
had relapsed. During this same time period, father failed to participate adequately in
mental health and medical services required by the case plan. Despite multiple
reminders, father failed to attend an important appointment with a psychiatrist, and, as of
June 2013, he had not restarted individual therapy or participated in a medication
evaluation.
       Further, we note that, even during the period between F.D.’s detention in June
2013 and the court’s rulings on jurisdiction and disposition in November 2013, father
continued to miss a significant number of his required drug tests, and he again tested
positive for methamphetamines on November 14, 2013. Father did participate in
individual therapy and a drug treatment program during this period, but his attendance
was inconsistent.
       The record also supports a conclusion that father’s inconsistency in addressing his
substance abuse and mental health problems negatively affected his ability to provide a
safe and stable home for F.D. In light of the evidence presented, the court could
conclude father’s drug use posed a risk to F.D.’s physical and emotional well-being. (See
§ 300.2 [“[T]he provision of a home environment free from the negative effects of
substance abuse is a necessary condition for the safety, protection and physical and
emotional well-being of the child. . . .”]; In re E.B. (2010) 184 Cal.App.4th 568, 575
[mother’s alcohol abuse endangered children’s physical and emotional health].)


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Although father denied using drugs in F.D.’s presence, there was evidence she had been
exposed to drug activity while in his custody. F.D. told the social worker drugs were
“ ‘little packages like detergent for laundry.’ ” F.D. said she knew her father used drugs,
because he told her he did. During this conversation with the social worker, F.D. turned a
picture of her and her father around to face the wall. She then grabbed a doll, colored its
eyes black with a pen, and stated, “ ‘I don’t like dad to have friends, they give him
drugs.’ ” In explaining its decision to remove F.D. from father’s custody, the juvenile
court noted F.D.’s knowledge of what drugs look like and how father obtains them.
       We also note that, during his relapse in June 2013, father left F.D. with the
maternal grandmother, whose drug use and possible dealing had led to court orders
prohibiting contact between her and F.D. The maternal grandmother had previously
taken F.D. from her placement without authorization and kept her for two days. This
aspect of father’s conduct, too, was part of a larger pattern of noncompliance with court
orders, as he repeatedly allowed contact between F.D. and the maternal grandmother.
       There was evidence father’s above conduct, and his failure to address his
substance abuse and mental health issues, posed risks to F.D.’s physical and emotional
well-being. While F.D. was in his custody, father reduced his and F.D.’s participation in
therapy. F.D.’s foster mother and her therapist expressed concern F.D. was being
required to keep secrets for father about father’s behavior, including his allowing contact
with maternal grandmother and his driving on a suspended license. Father cut off F.D.’s
contact with her court-appointed special advocate. The social worker received
information that, while in father’s custody, F.D. often wandered around the neighborhood
unsupervised. Police responded to a report father was throwing F.D.’s clothes out the
window. Father had difficulty maintaining stable housing, despite financial assistance
from Agency.
       F.D. also suffered emotional distress as a result of uncertainty over her long-term
placement. F.D. became paranoid and believed the court was watching her and had
cameras in her bedroom in her foster placement. Despite being told not to discuss the
case with F.D. because of her emotional fragility, father sometimes exacerbated the


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problem, such as when he told F.D. he had to call the police because Agency allegedly
would not let him see F.D.
       The cases cited by father, Kimberly R. v. Superior Court (2002) 96 Cal.App.4th
1067 (Kimberly R.) and In re Paul E. (1995) 39 Cal.App.4th 996 (Paul E.), are
distinguishable. In Kimberly R., the mother was managing her mental illness with
medication and psychiatric and psychological supervision, and she presented evidence
that she no longer used alcohol or drugs and that she complied with her case plan.
(Kimberly R., supra, at p. 1079.) The appellate court held the mother’s tardiness in
picking up the child from school on a single occasion did not pose a substantial risk of
harm to the child and did not provide substantial evidence supporting removal. (Id. at
pp. 1071, 1079.) In Paul E., the parents substantially complied with the case plan, and
the appellate court found the problems with the home (a shorted lamp socket, a propeller
on a boat, and a wading pool with dirty water in it) were “trivial to the point of being
pretextual.” (Paul E., supra, at pp. 1000, 1005.) Here, in contrast, the evidence supports
a conclusion father’s failure to engage effectively and consistently with the services
offered to him, and his inability to address his substance abuse problem, rendered him
unable to provide a safe and stable environment for F.D. and created risks to F.D.’s
physical and emotional well-being. (See In re T.W., supra, 214 Cal.App.4th at p. 1163
[focus of removal statute is on averting harm to child].)
       For the foregoing reasons, we conclude substantial evidence supports both the trial
court’s jurisdictional finding that the previous placement was ineffective in protecting
F.D., and the dispositional finding that placement with father posed risks to F.D.’s
physical and emotional well-being.
       Father’s remaining arguments are unpersuasive. First, as to jurisdiction, father
notes the court, adopting the language of the supplemental petition, stated the previous
placement was ineffective in addressing “the father’s rehabilitation in his capacity to be
protective of the child.” Father argues his lack of rehabilitation was not a proper basis for
removal of F.D. from his custody. But, as Agency notes, in this case the father’s inability
to address his substance abuse and related problems affected his ability to provide a


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protective environment for F.D. The record shows the court properly focused on whether
placement with father had been effective in protecting F.D. (See § 387, subd. (b); rule
5.565(e)(1); In re A.O., supra, 185 Cal.App.4th at p. 110.)
       Second, as to disposition, father contends there were reasonable means to protect
F.D. without removing her from father’s custody (see In re T.W., supra, 214 Cal.App.4th
at p. 1163); specifically, he argues further family maintenance services could have been
provided. Substantial evidence supports the juvenile court’s contrary finding. As the
court noted, father received more than 18 months of reunification services, followed by
11 months of family maintenance services, but he did not participate adequately in the
services and did not succeed in addressing his substance abuse and mental health issues.
In light of the long record of father’s inconsistent efforts to use available services,
substantial evidence supports the court’s conclusion further services did not constitute a
reasonable means of protecting F.D. The court did not err in removing F.D. from father’s
custody at disposition.3




       3
         Father does not challenge the court’s determination that, once it ordered removal
of F.D. at disposition, the proper course was to set a section 366.26 hearing, in light of
the reunification services already provided to father. (See rule 5.565(f).)


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                                  III. DISPOSITION
      Father’s petition and request for a stay are denied. This decision is final in this
court immediately upon filing. (See rules 8.452(i), 8.490(b)(2)(A).)




                                                 ______________________
                                                  Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Dondero, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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