Filed 7/11/13 In re J.P. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re J.P., a Person Coming Under the
Juvenile Court Law.


JOSE G.,
         Plaintiff and Appellant,
v.                                                                   A138432
SUPERIOR COURT,                                                      (Contra Costa County
         Defendant and Respondent,                                   Super. Ct. No. J10-01433)

CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,

         Real Party in Interest.




         Petitioner Jose G. (Jose) is the father of minor J.P., who was removed from the
care of mother Michelle P. (Michelle) due to neglect. Jose, who was not married to
Michelle and never had custody of his son, sought to have J.P. placed in his care. The
juvenile court ordered the Contra Costa County Children and Family Services Bureau
(Bureau) to provide reunification services to Jose. After over two years of services, the
Bureau recommended that J.P. be placed with his father under a family maintenance plan.
On April 11, 2013, rejecting the Bureau’s recommendation, the juvenile court terminated


                                                             1
services to Jose, and scheduled a hearing under Welfare and Institutions Code section
366.261 to consider a permanent plan and termination of parental rights.
       Jose now petitions for extraordinary writ relief. Opposition has been filed on
J.P.’s behalf. We conclude substantial evidence supports the juvenile court’s finding that
placing J.P. in Jose’s care would create a substantial risk of detriment to J.P.’s safety and
well-being. We therefore deny the petition.
                                      BACKGROUND2
       On October 1, 2010, police responded to an apartment where Michelle lived with
her adult son Mario and six-year-old J.P.3 Michelle and Mario had been involved in an
altercation, and the incident resulted in Michelle’s hospitalization on a section 5150 hold.
Michelle was supposed to be receiving treatment for mental health problems, but she had
not been taking her medications and her behavior had become increasingly bizarre. At
the time of the 5150 hold, she had alcohol and methamphetamines in her system.
Michelle was released later that same day.
       A social worker made an unannounced visit at Michelle’s apartment six days after
her 5150 hold and found her in a state of dishevelment. J.P. was absent from school that
day (apparently a common occurrence), and when asked about his whereabouts, Michelle
first lied that he was at school and then that he was at a friend’s house. After the social
worker called the sheriff’s department for officer assistance, Michelle admitted that J.P.
was sleeping inside the apartment and allowed the social worker and deputies to enter.
The apartment had a “very strong negative odor” and the carpet was “heavily stained,”
“sticky,” and “disgusting.” Wet toilet paper and rags littered the bathroom floor and the
hallway outside the bathroom. There were dirty dishes, rotten food, empty bottles, and



       1
           All subsequent statutory references are to the Welfare and Institutions Code.
       2
        The only petition before us the one brought by Jose. We thus omit facts
concerning Michelle that are irrelevant to the issues before us.
       3
        Michelle had another adult son, Orlando, who did not live with her, and two
other sons, Armando and Raymond, who lived with their paternal grandparents.

                                               2
other trash strewn about. A broken ceramic pot was scattered on the living room floor.
J.P. was sleeping on a bed in the corner of the living room.
       Michelle told the social worker that she stopped taking her medications because
she ran out, but one of the deputies found two bottles in a drawer. Michelle
acknowledged methamphetamine use, although she denied having a problem and claimed
she could stop using at any time.
       Mario was home at the time and told the social worker that J.P. needed to get out
of there, suggesting that he go live with his aunt. After Mario helped J.P. get dressed,
J.P. was taken into temporary custody and placed in foster case. As he was leaving,
Michelle told him that it was his fault he was being taken away because he had broken
the pot that was in pieces on the living room floor.
       The day after J.P.’s removal, the social worker spoke with J.P.’s other adult
brother, Orlando, who wanted to be considered a temporary relative placement until J.P.
could be placed with his aunt. Orlando provided insight into Michelle’s mental health
problems, advising that her diagnosis was schizophrenia. She had been drinking more
and more lately, and her behavior was out of control because her medication did not mix
with alcohol.
       The social worker also contacted Jose, who claimed that, up until a month prior,
he was seeing J.P. on a regular basis. He had never lived with, nor had he ever been
married to, Michelle, and he purportedly knew nothing about her mental health issues or
alcohol and drug abuse. Although there was no court ordered child support, he claimed
he gave Michelle money to help out. Jose denied having any substance abuse issues of
his own, and said that he lived with his wife and their three children, who were 13, five,
and two years old.4




       4
         The record refers to Laura R. interchangeably as Jose’s wife and partner. Laura
testified that she and Jose had never married.

                                             3
       Section 300 Petition and Detention
       On October 12, 2010, the Bureau filed a section 300 petition alleging that
Michelle failed to protect J.P. within the meaning of section (b) because she had mental
health, drug, and alcohol problems that inhibited her ability to protect and parent him.
The petition identified Jose as the alleged father. The juvenile court ordered J.P. detained
the following day.
       At a November 18, 2010 hearing, Jose made his first appearance, and the court
ordered paternity testing.
       Jurisdiction
       On November 29, 2010, the court sustained the allegations in the petition and took
jurisdiction over J.P. It also appointed Orlando as J.P.’s educational representative, and
continued the matter to January 3, 2011 for disposition.
       Disposition
       In the Bureau’s disposition report, the social worker described J.P. as a “sweet,
energetic little boy who enjoys playing and interacting with others.” He would
sometimes get frustrated when he did not remember or understand things, which would
make him angry. J.P. was in kindergarten, and it was suspected that he had some
learning delays. The social worker was seeking to have him formally assessed, but in the
meanwhile, he was receiving speech services.
       According to the social worker, J.P. told her that he was afraid of Laura, his
father’s partner, because while visiting his dad on one occasion, Laura had choked him
because she thought he broke her window.
       As to Jose, the social worked advised he had two prior arrests—one in 2002, the
other in 2003—for possession of drugs for sale, with one conviction. Jose admitted only
one prior arrest, claiming that at the time he was living in a home where drugs were being
sold and denying that he was involved in the criminal activity or that he was convicted of
any crime. Jose also claimed that his only history of drug use was trying marijuana years
ago. This conflicted with Michelle’s representation that she used methamphetamines


                                             4
with Jose, as well as a claim by one of Michelle’s sons that he had seen Jose give
Michelle drugs on more than one occasion.
       Jose advised the social worker that he and Laura would like to have J.P. placed in
their care, and the Bureau was conducting an assessment to determine the appropriateness
of placing J.P. with his father. The social worker was concerned about the
appropriateness of such a placement, however, because of Jose’s failure to adequately
monitor the care J.P. had been receiving from his mother, Jose’s own history of possible
drug use, and concerns about the relationship between J.P. and Laura. The social worker
noted that Orlando had also expressed an interest in caring for J.P., but he did not have a
suitable living arrangement at that time.
       The Bureau recommended family reunification services for Michelle, with
services for Jose as well if he elevated his paternity status to presumed. It also submitted
proposed case plans for both parents.
       At a January 3, 2011 dispositional hearing, the court ordered reunification services
for Michelle, acknowledged Jose as J.P.’s alleged father, and continued the matter to
June 20 for a six-month review hearing.
       A paternity test subsequently confirmed that Jose was J.P.’s biological father, and
his status was raised to presumed father.
       Jose’s Section 388 Request
       On March 28, 2011, Jose filed a section 388 request, seeking to change the court’s
out-of-home placement order. As the nonoffending parent, Jose requested that J.P. be
placed with him under family maintenance while he worked to complete his case plan.
The court scheduled a hearing on Jose’s section 388 request for April 18, 2011, which
hearing date was ultimately continued to May 25 for a contested hearing.
       Following the contested hearing, the court denied Jose’s section 388 request but
adopted the case plan for him. It required him to stay sober and show his ability to live
free from drugs and alcohol; submit to random drug testing; meet J.P.’s physical,
emotional, medical, and educational needs; cooperate with the social worker; successfully


                                             5
complete a parenting class; and demonstrate that he would not permit others to physically
abuse J.P. The court maintained the status review date of June 20, 2011.
       Six-Month Status Review
       In a six-month status review report, the Bureau updated the court on J.P.’s
well-being. J.P. had undergone a neurodevelopmental evaluation, which resulted in a
diagnosis of attention deficit hyperactivity disorder (ADHD), inattentive type. It was
recommended that J.P. be prescribed a neurostimulant, although his foster mother felt she
was able to manage his behavior at home without medication. An occupational therapy
evaluation showed significant impairment in J.P.’s ability to complete paper and pencil
tasks with control and ability, and resulted in a diagnosis of developmental coordination
disorder, with a recommendation that he receive occupational therapy. J.P. had also been
diagnosed with a generalized anxiety disorder and was participating in psychotherapy.
His therapist was working with him to identify and verbalize his feelings.
       J.P. also had academic delays, with below average scores in reading, writing, and
math. It was expected that an assessment of J.P.’s eligibility for special education would
occur in the fall.
       J.P. remained in the same placement he had been since his October 2010
detention, and it was going well. He had developed a close bond with his foster mother
and felt safe with her.
       As to Michelle’s status, the Bureau advised that she continued to suffer from
mental health problems and was sporadic in her visits. When she did visit, she failed to
recognize appropriate boundaries with J.P. and was often psychotic in her behavior.
While it was difficult to know whether her issues were due to mental health issues,
substance abuse, or both, her circumstances had not improved since J.P.’s removal,
making his return to her care unsafe at that time.
       Jose, on the other hand, had been fairly consistent in his visits. He often brought
his other three children with him, and they enjoyed playing with J.P. Initially, Jose was
minimal in his interactions with J.P., which was possibly attributable to a language


                                             6
barrier.5 Over the course of numerous visits, however, Jose had become more engaged
with his son and was developing a parental bond. Likewise, J.P. was becoming
increasingly enthusiastic about visits with his father.
       Despite Jose’s progress, the Bureau still had many of the same concerns about
placing J.P. with him, concerns that, according to the Bureau, Jose failed to acknowledge
or understand. Despite having tested positive for methamphetamine (in May 2011), as
well Michelle’s statement that she has used drugs with him and two arrests and a
conviction for possession of narcotics, Jose continued to deny ever having used drugs.
He also had not acknowledged J.P.’s fear of Laura, or addressed it with J.P. The Bureau
recommended that reunification services be extended for both Michelle and Jose, with the
social worker concluding as follows: “This worker has tried to help [Jose] recognize that
J.P. needs more from him as a parent than the basics he is used to providing; transporting
to and from school, taking him to the park, etc. It remains to be seen whether [Jose] will
be able to meet J.P.’s distinct developmental, educational, and emotional needs.”
       At a six-month review hearing on June 20, the court continued reunification
services for six months and set a 12-month review hearing for December 5, 2011.
       On October 20, 2011, the Bureau filed an ex parte application requesting authority
to approve up to thirty consecutive overnight visits for Jose. According to the social
worker, both J.P. and Jose were requesting overnight visits, they were doing very well in
their family therapy sessions, and their therapist was supportive of overnights.6 The
Bureau also advised that Jose was compliant with his case plan, participating in random
drug testing with negative results since May 26 and actively participating in a substance
abuse treatment program. The court granted the request.




       5
           Jose spoke primarily Spanish, while J.P. spoke primarily English.
       6
         Around this time, social worker Barbara Crespo took over J.P.’s case from the
prior social worker. As will be seen, Crespo would later testify at the contested hearing
that concluded with the termination of reunification services for Jose.

                                              7
       12-Month Status Review
       In a 12-month status review report prepared in November 2011, the Bureau
recommended that the court continue services to Jose but terminate them as to Michelle.
While Michelle was not drug testing nor participating in a substance abuse treatment
plan, Jose remained compliant with his case plan. He and J.P. were also participating in
family therapy, the sessions were going well, and Jose was engaging in positive ways
with his son.
       The Bureau advised the court that J.P. was doing well in his foster home and had
begun overnight visits with his father in October. Earlier in November, however, the
Bureau had received information that Jose hit his younger children and used
inappropriate words toward his oldest child. The Bureau opened an investigation and
suspended J.P.’s overnight visits. J.P. had recently reported that he liked being with his
father and half-siblings and that he got along with Laura and was not afraid of her, but it
was unclear from the Bureau’s report whether J.P. had expressed those sentiments before
or after the Bureau opened its investigation.
       J.P. was otherwise doing well. He had started on medications for his ADHD but
experienced negative side effects. His pediatrician suspected that he may have bipolar
disorder and depression, rather than ADHD, so he was being referred for psychological
and psychiatric evaluations. He was eligible for special education services due to an
auditory processing learning disorder, and he was participating in individual and family
therapy.
       The 12-month status review hearing did not take place on December 5 as
scheduled, and was continued first to January 12, 2012, and then to February 27.
       In a memorandum prepared prior to the February 27 hearing, the Bureau advised
the court that J.P. was continuing to have weekly unsupervised visits with his father, but
did not want overnight visits, so there had been none since November 2011. Jose had
completed his substance abuse treatment program, was continuing to attend 12-step
meetings, and was participating in random drug testing with negative results. He was no
longer participating in family therapy, however. According to the therapist, he was not

                                                8
committed to the process and exhibited a lack of priority when it came to therapy,
possibly due to cognitive deficits that were affecting his ability to benefit from the
therapy.
       At the February 27 hearing, the court continued the matter to March 5 for a
contested hearing.
       In its status report for the March 5 hearing, the Bureau advised the court that J.P.
was doing well in his foster placement and continued to have weekly visits with his
father, although he still did not want overnight visits. J.P. indicated that he did not want
to live with his father, because he did not feel safe with him and Laura. He expressed a
desire to live with his older brother Orlando, who also desired to care for J.P., but did not
have a suitable living arrangement.
       The Bureau further advised the court that although family therapy had been
terminated in January, Jose otherwise remained in compliance with his case plan.
Nevertheless, it did not believe that placement of J.P. with Jose was safe. It expressed a
concern that Jose had some cognitive delays that might interfere with his ability to, and
understanding of how to, parent J.P. In the Bureau’s opinion, Jose did not fully
understand that J.P. was a child with special needs who required specialized services.
The Bureau thus recommended terminating reunification services to Jose and continuing
J.P. in foster care with a goal of permanent placement.
       A contested hearing was held on March 5, at the conclusion of which the court
terminated family reunification services for Michelle. As to Jose, however, the court did
not follow the Bureau’s recommendation, instead extending reunification services for
him. It then continued the matter to April 5, 2012 for an 18-month review hearing.
       18-Month Status Review
       On March 29, 2012, licensed clinical social worker Marynella Woods submitted a
report to J.P.’s counsel advising, as pertinent here: “At your request I conducted another
home visit and assessment of your eight year old client, [J.P.] Prior to your request, I
received a phone call from the foster mother, Lydia [S.], stating that she was concerned
about the deplorable condition of [J.P.’s] clothes when he returned from visits with his

                                              9
father. As you know, for some time now [J.P.] has not wanted to visit with his father,
much less live with him. He had complained that his father was cruel to the family pets,
and physically abusive to the other children in his home. The social worker reportedly
investigated the situation and decided that [J.P.’s] allegations were unfounded, so the
visits have continued. [The social worker] also commented that part of the problem is
that [J.P.] is ‘too attached to the foster mother.’ Frankly, I find this comment to be
disturbing because what we hope for with these kids is that they can attach in a healthy
way. The fact that [J.P.] is attached to Ms. [S.] is a good thing, and has certainly been a
catalyst for the progress he has made thus far. . . . [I]f the Department is planning on
making any moves for this child, the father is not an appropriate placement. [J.P.] is
simply too emotionally vulnerable, and even with the gains that he has made, still has a
long way to go.” Wood recommended a slow and progressive transition to Orlando’s
home.
        The court held a contested hearing on May 14, 2012. Following the hearing, the
court found extraordinary circumstances, ordered another six months of reunification
services for Jose, and continued the matter to August 13, 2012 for a 24-month review. It
also ordered Jose to attend parenting classes, and approved increased visitation during the
summer.
        24-Month Status Review
        Prior to the August 13 hearing, the Bureau filed a status memo advising the court
that Jose and Laura had completed parenting classes and continued to want J.P. to live
with them. J.P. was still having weekend visits.
        The social worker also advised that she attempted to increase overnight visits, but
these visits were not supported by J.P.’s counsel or his foster mother. According to the
foster mother, J.P. was tearful at the prospect of being with his father, and she expressed
concern about the quality of care J.P. received while at his father’s home, including
worries about hygiene and the cleanliness of the house. J.P. had told her that his father
does not let him brush his teeth or take showers. The social worker spoke with Jose,
however, who stated that J.P. did bathe when he was there, and that Jose and Laura made

                                             10
sure he and his clothes were clean. The social worker noted that she had visited Jose’s
home and found it clean and comfortable.
       The August 13 hearing was continued to August 20 and again to October 29, 2012.
Prior to the October 29 hearing, the Bureau submitted a status report recommending that
J.P. be placed with his father with a family maintenance plan and that Orlando be
released as J.P.’s educational representative.
       The Bureau advised that J.P. was doing well in his foster home and that his basic
needs were being met. He was receiving special education services and twice-weekly
tutoring, and his process in school was satisfactory. He was only taking Benadryl, his
foster mother having stopped the psychotropic medications when she noticed he was
having memory problems and was very slow to respond.
       According to the Bureau, J.P. was able to meet his personal care needs with
assistance and reminders, although he was easily distracted and had problems staying
focused. He continued to participate in psychiatric services that included medication
monitoring and individual therapy. The Bureau quoted J.P.’s therapist as noting that
although the “foster mother has become very attached to J.P. and has been a strong
advocate for him, it is difficult to determine how much she influences what he is thinking
and feeling, particularly in regard to his relationship with his biological father. J.P. has
made great progress under her care and she should be applauded for her efforts.
However, the therapist is always aware that he must carefully weigh what J.P. says with
the filter of how much is this influenced by the foster mother.”
       Jose remained in compliance with his case plan, consistently testing negative for
drugs, and Jose and Laura had completed a parenting program. According to Jose, J.P.’s
siblings loved being with J.P., and they all wanted him to live with them.
       Concerning visitation, the Bureau noted that J.P had regular unsupervised visits
with his father and recently had an extended weekend visit as well as a seven-day visit.
The social worker visited J.P. during each visit, and observed him to be very comfortable
with his family and laughing and playing with his siblings. J.P. related having had a
good time during each visit, and did not express any fear or discomfort.

                                              11
       The Bureau concluded with this assessment: “[J.P.] has done well in his current
placement. His extended visits with his father have gone well. The father and his wife
made the effort to take [J.P.] to his sport activities and ensured he kept his appointments.
[J.P.] indicated to this worker that he had a nice time with his family and he did appear to
be comfortable in their presence. [¶] [Jose] remained consistent with his interactions with
[J.P.] He completed all that the Bureau and the Court asked of him. He has consistently
drug tested negative since June 13, 2011. He participates in the educational meetings for
[J.P.] and is open to do whatever is needed to have his son with him permanently.” With
that, the Bureau recommended that J.P. be placed in his father’s care under a family
maintenance plan. It also requested that Orlando be released as J.P.’s educational
representative.
       In an undated caregiver information form (but apparently submitted in advance of
the October 29 hearing), J.P.’s foster mother advised the court that J.P. “gets very angry
and emotional each and every weekend when he has to go with his dad. Says he will run
away, he cries, yells.” An attachment described multiple complaints or incidents that
purportedly occurred between May and October 2012, including: J.P. came home from a
visit and complained that his father threw him into the water even though J.P. was still
learning how to swim; J.P. reported that his father and half brother swore extensively;
J.P. complained that he hates sleeping at his father’s because all four children had to
sleep in the same room and he often had to share a bed with his young half brother; J.P.
reported that his father and half siblings often spoke derogatively about his foster mother;
J.P. told his foster mother that his father held cockfights in the backyard; J.P. cried at a
doctor’s appointment because his father had not recognized J.P. in the hallway until J.P.
was standing right in front of him, raising concerns about Jose’s eyesight and the safety
of him driving J.P. in a car; J.P had a nightmare about Laura putting her hands around his
neck; J.P. cried because his young half brother told him their father said he would shoot
Orlando if he got custody of J.P.; and after a visit, J.P. told Orlando that his father
“smacked him on the head” because he let one of their dogs lick him on the face.


                                              12
       Also attached to the caregiver form was a letter from J.P.’s pediatrician, who
described her interaction with J.P. at a recent appointment, as follows: “He was very
emotional during the visit and cried readily. He and his foster mom shared with me that
he had actually seen his biological father at the clinic that day. His father actually did not
recognize him when he saw J.P. I asked J.P. how he felt about living with his father and
his family. He told me that he did not want to live with biological father. Upon further
questioning, he said that his step-mother tried to choke him. I tried to ask more about this
incident but J.P. did not want to discuss it further.”
       At the October 29 review hearing, counsel for J.P. contested the Bureau’s
recommendation, and the matter was set for a contested hearing.
       On November 14, 2012, J.P.’s foster mother, Lydia, filed a de facto parent request,
which the court granted on January 7, 2013.
       24-Month Contested Review Hearing
       A contested hearing took place over the course of three days, February 13, March
14, and April 11, 2013. J.P. was the first to testify. He expressed concerns about living
with his father because his father frequently used swear words, often yelling “bitches” at
his half-siblings, and he would hold, as J.P. called them, “chicken fights” in the backyard
where upwards of 30 people would come and place bets. When asked if anyone in the
house hit him, J.P. said that his father did on one occasion when he was petting one of the
family dogs. J.P. also did not like his father’s house because the kitchen and bathroom
were infested with cockroaches. According to J.P., Jose never requires him to shower
and, in fact, sometimes prevents him from doing so. If he had his choice, J.P. would live
with Orlando.
       J.P. acknowledged that he had been visiting his father frequently lately, including
regular Saturday and Sunday visits and overnights. When asked if they had been going
well, J.P. responded, “Kind of.” As to what he did when visiting his father, J.P. testified
he watched television, played outside, went to the park, and walked the dog.




                                              13
       J.P. also testified that even though his father’s house has four bedrooms, he shared
a bed with his 14-year-old half sister.7 His two younger half siblings slept in the same
room as Jose and Laura, and the remaining two rooms were vacant.
       When asked about the incident when Laura purportedly choked him, J.P. testified
that he did not remember it ever happening, nor did he remember telling his pediatrician
about it. He answered “no” when asked if he was afraid of Laura, but stated that he was
“sometimes” afraid of his father, because he hit him on the head one time when J.P. was
petting his dog in a cage, which Jose did not like. J.P. described another time when his
father hit him on his hand when one of the dogs licked his face.
       Jose was the next witness to testify. In response to questioning, he was unable to
identify what grade J.P. was in, the name of his teacher or pediatrician, the names of his
medications, or his medical diagnoses.
       Jose acknowledged having had four chickens at one point, but testified that he had
given them away on the orders of the city because they crowed early in the morning.8 He
denied ever having cockfights or any other similar event.
       Concerning his prior conviction for possession of drugs for sale, Jose claimed that
he had been living with people who were selling drugs but he got blamed for it. He
spoke up about it, and the police later found out who really did it. And he claimed he
was previously unaware of his positive drug test “because I don’t use drugs.”
       Jose testified that he and Laura had completed two parenting classes in which they
learned how to talk to and educate children. He had also been participating in random
drug testing pursuant to which he submitted to tests every week or two, all of which had
come back negative.
       Jose denied that he had ever hit J.P., claiming that whenever J.P. needed
disciplining, he just gave him a “talking to.” When asked what sort of bad things J.P. had
done, Jose described a recent incident when J.P. put a knife to his younger half sister’s
       7
         It is unclear from the testimony at the hearing whether J.P. actually shared a bed
or just a bedroom with his sister.
       8
           J.P. likewise testified that they no longer had chickens.

                                               14
head. Another time, J.P. hit another child hard with a ball. Jose never told the social
worker about either incident. Jose also denied knowing what “the B word” is.
       Jose affirmed that he and Laura both wanted J.P. to come live with him. He was
paying $25 in child support each week, and he understood the payments would stop if
J.P. lived with him.
       Concerning the sleeping arrangements, Jose confirmed that J.P. slept in the same
room as his teenage half sister. When asked why he did not sleep in his own room, Jose
explained that he previously had the two spare bedrooms rented out, and he was looking
for new tenants.
       When asked about the cockroaches, Jose admitted “there are some but not too
many.” He had “put a lot of bombs and all that” in attempts to exterminate them.
       As to J.P.’s hygiene, Jose explained that he would tell J.P. to shower, but he often
arrived with tattoos and “painted hair,” which he did not want to shower off. According
to Jose, J.P.’s foster mother was the one who told him not to shower at his father’s house
because the tattoos and paint would wash off.
       Jose understood that J.P. was having learning problems and that he was also in
need of therapy.
       Barbara Crespo, who had been the social worker assigned to J.P.’s case since
September 2011, then testified. She was aware of Jose’s one positive drug test, as a
result of which he attended an outpatient substance abuse program, 12-step meetings, and
random drug testing. Crespo acknowledged that family therapy was stopped in January
2012 due to Jose’s lack of participation and issues of possible cognitive deficits that
affected his ability to benefit from therapy. She also acknowledged that, according to the
therapist, Jose exhibited a lack of priority when it came to therapy and he was not
committed to the process.
       Crespo testified that she had explained J.P.’s diagnoses to Jose, but that he did not
appear to understand what they were. He did, however, describe behaviors in J.P. that
were consistent with his diagnoses.


                                             15
        Crespo had not heard about the knife incident prior to that day. Jose had told her,
however, that J.P. was acting out towards his siblings and was hitting them.
        Crespo estimated that she had visited Jose’s home five times in 2012. Whenever
J.P. was there for an extended visit—typically, seven consecutive days—she had made a
point of visiting when Jose was going to be there with J.P. She also visited him at his
father’s house right before Christmas, and she visited on two additional Saturdays.
Although she had personally observed the presence of cockroaches, she had no concerns
about the general cleanliness of Jose’s house. When she did the initial home assessment,
Jose showed her the bedroom where the children slept, and there were three beds in it.
She was not aware that J.P. and his teenage half sister were sharing a bed. At the time of
the initial assessment, the family had one dog and some chickens. During later visits, the
chickens were gone and they had more dogs, although none appeared vicious.
        When she did the initial assessment, Crespo interviewed all adults who lived in the
home, including one of Jose’s tenants. She was going to do a background check on the
tenant, but he passed away before it was completed. Crespo did not believe that her
initial home assessment reported to the court that there were other adults living in the
home.
        According to Crespo, Jose had participated in three meetings concerning J.P.’s
school learning plan. He had a general understanding that J.P. has cognitive delays,
although she suspected he did not understand the severity and the long-term effect of it.
Laura had also attended the meetings, and she seemed to comprehend the issues better.
Crespo also suspected that Jose did not fully understand J.P.’s emotional issues. The
Bureau’s recommendation that J.P. be turned over to Jose’s care with a plan for family
preservation services would include months of family therapy in the home to help the
whole family adjust to the new living arrangement.
        When asked if the foster mother understood J.P.’s educational needs, Crespo
responded that she and the foster mother had different opinions about J.P.’s academic
needs. The foster mother (as well as J.P.’s brother Orlando) wanted him to be in a
smaller educational setting, while Crespo believed J.P. was doing well where he was. It

                                             16
was not, in her opinion, a matter of changing the school environment as much as it was
finding a way for him to retain the information he was learning.
       When asked if she had an opinion as to where J.P. felt safer, Crespo responded: “I
know what he said to me. He stated that he feels better with Lydia or his brother. I also
know what he’s told the psychiatrist. But bottom line, [Jose] hasn’t given up on his son.
He stuck it out all this time. He is a non-offending parent. And it doesn’t seem—kind of
like, I really need to give him the opportunity to be the parent that he can be, him and his
wife working together to bring this child into their family and make the family whole, but
I know that [J.P.] does not want to be with his father.”
       Laura, Jose’s partner, was the next to testify. She and Jose had been together for
16 years, although they never married. They had three children together, who were four,
seven, and 15 years old at the time of the hearing. Other than the two parents, three
children, and J.P. on most weekends, no one else lived in the house.
       Laura testified that there were times when she was home with J.P. and she found
him difficult to direct, particularly on the first day of a visit. After the first day, he
typically behaved better. She described a recent incident during a surprise birthday
celebration for J.P. when he exhibited a bad attitude toward her, smearing her with cake.
They had spent a lot of time preparing for the party so J.P. would have a good time, and
his behavior reduced her to tears.
       Laura was aware that J.P. participated in therapy because he had difficulty
remembering things and, as she put it, “he has a bit of trouble with his character.” She
also acknowledged that J.P. had misbehaved towards his younger brother recently, and
she was concerned about his behavior towards her children. When asked if she thought
she would treat J.P. differently from her three children if he was placed in their home, she
answered, “There has never been a difference. I don’t know why there would be one
afterwards.” She was not aware that if J.P. were returned to their home, someone would
come three to five times a week to help integrate J.P. into the family. Testimony then
concluded for the day.


                                               17
       When testimony resumed nearly a month later, Crespo was recalled to the stand.
Since the previous court session, Crespo and counsel for J.P. spoke about J.P. having an
extended visit with his father, which they agreed would be a good opportunity to see how
J.P. would react. A week-long visit was scheduled to correspond to J.P.’s spring break,
but on the day the visit was set to begin, Laura called Crespo and advised that one of her
young children was very sick and they were on the way to the emergency room. Since no
one would be home to greet J.P., the visit was canceled, and it ended up being reduced to
a single overnight visit.
       Counsel for J.P. examined Crespo about a visit report prepared at the request of
J.P.’s counsel. In the report, an investigator stated that she found the living room
furnished but dirty; the kitchen in complete disarray, with food, unwashed dishes, and
cooking utensils piled on every available surface; bedrooms filthy with little furniture and
piles of clothes, toys, and personal items strewn about a bathroom that was also filthy and
strewn with towels and other personal items. Crespo testified that that was inconsistent
with how she had ever found the home, on both announced and unannounced visits.
       J.P.’s counsel asked Crespo if she had considered Jose’s lack of understanding of
J.P.’s needs in making her recommendation that he be placed in his father’s home. She
did not think he was incapable of understanding J.P.’s needs, and that they had spoken
about the services that J.P. was receiving and would continue to receive. As to whether
she had considered any negative impact on J.P. in transferring him from the foster home
where he was then living, Crespo testified that she did not see a negative impact other
than that he did not want to be there. She did concede, however, he would be affected by
breaking the bond he shared with his foster mother, and it would be destabilizing to
separate him from Lydia, just as it would be for any child. That was why, she added, the
family would receive services to help with the transition.
       Counsel for the Bureau then questioned Crespo on the portion of the report
describing the condition of the house. According to Crespo, Jose called her the Monday
after the investigator’s Saturday visit. He told her a person had shown up and wanted to
take J.P. for a walk, which he would not allow because he does not let his children walk

                                             18
off with strangers. He did let the woman in the house, explaining to her that the home
had just been fumigated, which was why belongings were moved around and piled on top
of each other.
       Counsel then asked Crespo about the minimum standard of care for parents. She
testified that the parent needs to meet the child’s basic needs. As far as housekeeping
goes, it means a safe home where the child is not in danger, does not have access to
chemicals, and has a bed; there is a minimum of three days of food in the refrigerator;
and there is hot and cold running water and working toilets.
       Crespo also testified that she believed the foster mother was reluctant to allow J.P.
to reunify with Jose. Crespo explained that when that is the case, the Bureau would
typically move the child to another placement. According to Crespo, that was not done
here because Lydia was very good when it came to managing J.P.’s doctor’s and therapy
appointments, and Crespo wanted to maintain that for J.P. And once Lydia became the
de facto parent, Crespo felt she was unable to move J.P.
       Lydia was the final witness to testify. She had been J.P.’s caretaker for over two
and a half years. When he first came to live with her, J.P. had no medications, no
eyeglasses, and was not potty trained. He was subsequently diagnosed with ADHD,
posttraumatic stress, and insomnia. Since that point, he had been prescribed
approximately five different psychotropic medications, all of which Lydia tried but
ultimately stopped because of his reaction to them. At the time of the hearing, J.P. was
only taking Benadryl to help him sleep, Albuterol for asthma, and Claritin for allergies.
He would shortly be starting a new psychotropic medication to help him focus and pay
more attention.
       Lydia testified that she had been attending all of J.P.’s educational meetings.
Because J.P. was behind academically, he had tutoring twice a week at home, and she
also read to him or gave him extra homework.
       As to his visits with his father, J.P. has told Lydia that he did not feel safe. When
asked about J.P.’s particular concerns, Lydia related that the house was unclean, Jose’s
friends came over and they hung around outside drinking, and nobody cooked for him.

                                             19
After visits, J.P. would return to her house and be very quiet, telling her about the things
that happened during the visits, such as he slept in a dirty bed, he could not sleep in his
bed because it was piled with clothes, and he was not given enough food to eat.
          Concerning hygiene matters, Lydia described how J.P. loved to take showers,
brush his teeth, and wash his face. When he returned from his father’s house, he was
often wearing the same clothes he had worn over there, which were by then very dirty,
and he was unbathed.
          Lydia also testified that in June 2012, J.P. told her about a cockfight he witnessed
at his father’s house. Lydia also testified that J.P. told her about being attacked by a pit
bull outside his father’s house, although when J.P. testified, he did not recall the incident.
          Jose was recalled to the stand to answer questions about the investigator visit that
had occurred since his original testimony. According to Jose, the investigator arrived
unannounced on a Saturday when Jose was home alone with J.P. and his younger half
brother. Jose testified that the night before the visit, the house had been sprayed for
cockroaches, and the family had not yet returned all of their belongings to their rightful
places.
          Closing arguments began with counsel for J.P. arguing that he would be
detrimentally affected if the court followed the Bureau’s recommendation. He would
lose the security he had in Lydia’s home, and in turn he would be placed in a home where
he did not feel safe. Counsel further argued that the Bureau’s recommendation was
financially motivated because it would no longer have to pay for his foster care.
          Counsel for Jose argued that while there was testimony J.P. did not feel safe at his
father’s house, he never identified concrete examples of what made him feel unsafe.
Counsel noted that while the case was still in family reunification, Lydia was advising
that she wanted to adopt J.P., which was premature at that point. Because of her bias,
counsel opined that J.P. was being coached to say he did not like it at Jose’s house, giving
only examples of uncorroborated incidents such as the cockfights and people hanging
around in the backyard drinking. He concluded with this: “[T]he father has done
everything he’s been required to do under the [family reunification] plan. He deserves a

                                               20
chance, an opportunity, I think Ms. Crespo said it herself, to show that he can parent this
child. If he can’t—and we’re not talking about a dismissal. If he can’t, then the [Bureau]
will come back in and [J.P.], I have no doubt, will be removed and probably put back
with [Lydia]. [¶] But this is really jumping the gun because the caretaker wants to adopt
him. And she’s done a good job for him, but we’re not at that point yet in this case. And
so I think policy of the law favors reunification. And to allow the caretaker to step in and
say, ‘Well, I can be a better parent. Let’s forget reunification even if the parent has done
everything he can to reunify,’ I think that should not be condoned.”
       Counsel for the Bureau argued last, contending that the care J.P. was receiving in
the foster home, as argued by counsel for J.P., was irrelevant to the question before the
court, which was whether there was detriment to J.P. in placing him in Jose’s home. As
counsel put it, under section 366.22, the court was “required to return the child to the
custody of the parent unless it determined by a preponderance of the evidence that the
return of the child would create a substantial risk of detriment to the child’s physical or
emotional well being. . . . The standard for showing detriment is fairly high one. It
cannot mean merely that the parent in question is less than ideal, did not benefit from
reunification services as mentioned . . ., seems less capable than any available foster
parent or other family member. Rather, the risk of detriment must be substantial such as
returning a child to parental custody represents a danger to the child’s well being or
physical or emotional well being.”
       Counsel noted that Jose had appeared in the case from the very beginning seeking
custody of J.P. and had “done his case plan. He has done everything that the Department
has asked of him. He has tested negative for 18 months. He has had the child in his
home. He does not treat the child differently than his other children.” And she reiterated
that if J.P. were placed with his father, the Bureau would provide family preservation
services to assist with the transition. J.P. also had additional support in place, as he has
access to his brothers and a mentor with whom he had an ongoing relationship.
       Following argument, the court terminated reunification services to Jose, offering
the following rationale:

                                              21
        “I think there has been a showing by more than preponderance of the evidence that
return—not even return—to place J.P. with the father at this time would create a
substantial risk of detriment to his emotional well being.
        “I have gone back—I have reviewed the documents that I have stated on the
record. I have gone back and reviewed the testimony on the prior dates. I note that the
father when he testified he didn’t know what grade J.P. was in, he didn’t know the name
of his teacher. He didn’t know why J.P. needed the medication he was taking or even
what the specific medication was. He didn’t know who the doctor is. He had absolutely
no comprehension of any academic challenges or emotional needs that he can describe to
the court.
        “Furthermore, and I don’t think it’s all that insignificant, is when you look at this
case and you have to take each case as they come, this child has been through a really
horrific childhood and [Jose] was not much part of that childhood. And the part that he
was, according to statements of the older brother, were not very good parts of the
childhood including supplying and participating in ingesting drugs with the mother in this
case.
        “And I went back and I was a little bit surprised, but in March of 2012, it was
actually recommend[ed] that services to dad be terminated. And Commissioner
Houghton overruled that and ordered no [sic] more services. And then you come back in
October and now it’s the recommendation that [J.P.] be removed from the caretaker and
placed with father, for the first time in his life to live with his father and there has
absolutely been no change in circumstances since the March recommendation and the
October recommendation.
        “The father still doesn’t grasp the issues. He denies that he has ever used or
participated in drugs. He’s been convicted of trafficking in drugs and tested positive, and
he states he doesn’t know why he possibly could have tested positive to those drugs. He
has shown absolutely no insight into his own issues, let alone this child’s issues.
        “And the fact that they don’t even speak the same language is just—given this big
picture before this Court, I’m not sure why [Lydia] has become the villain in this.

                                               22
Because there is no evidence before this Court that she has done anything to sabotage any
of these relationships, period. Everyone can surmise that these are statements of [J.P.]
that she is reporting. These are not her statements. And the fact that she has been an
active advocate on his behalf, I think she should be applauded for that and not made to be
someone who is developing a relationship that never existed between [J.P.] and his father.
       “The Court hopes that there will be a positive relationship at some point between
[J.P.] and his father, but the Court does not believe there is one now such that the court
would be willing to place [J.P.] for the first time in his life with a dad given the issues
that [J.P.] presents. And this is not about who’s the better caretaker. It’s about this boy
who appears in this courtroom with all of his issues.
       “So I cannot go along with the recommendation in this case for the reasons that I
have stated. And it has nothing to do with cockroaches, and it has nothing to do with
taking showers at caretaker’s home and putting deodorant on. Those are great things, but
that’s not what the Court is looking at. I’m looking at the emotional well being of this
little person in the courtroom.”
       With that, the court set the matter for a section 366.26 hearing on August 8, 2013.
       On April 17, Jose filed a timely notice of intent to file writ petition. Opposition to
Jose’s petition was filed on behalf of J.P. The Bureau took no position.
                                       DISCUSSION
       Section 366.22, subdivision (a) provides that at periodic review hearings, “the
court shall order the return of the child to the physical custody of his or her parent or
legal guardian unless the court finds, by a preponderance of the evidence, that the return
of the child to his or her parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the child.” In
reaching its decision, the court “shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which he or she availed
himself or herself of the services provided.” (Ibid.)
       In announcing its decision, the juvenile court here found that placing J.P. in Jose’s
care would create a substantial risk of detriment to his emotional well-being. We review

                                              23
the court’s findings for substantial evidence (Jennifer A. v. Superior Court (2004)
117 Cal.App.4th 1322, 1326), and we conclude substantial evidence supported the court’s
order terminating reunification services to Jose.
       J.P. was a vulnerable child with many special needs. He had been diagnosed with
ADHD and general anxiety disorder, although his therapist suspected he had bipolar
disorder and depression. He took medications for various ailments, including Albuteral
for asthma, Claritin for allergies, and Benadryl to help him sleep at night. More
significantly perhaps, J.P. had tried multiple psychotropic medications to treat his
psychiatric disorders, but had experienced negative side effects. It was expected that he
would be trying another psychotropic medication in the near future. Despite these
significant health concerns, Jose could not identify J.P.’s various diagnoses, nor did he
know what medications he took or the names of his doctors. And, according to Crespo,
when she explained the diagnoses to Jose, he did not appear to understand.
       J.P. also needed various forms of therapy to help him cope with his numerous
issues. Despite this, family therapy had been terminated because Jose was uncommitted
to the process and failed to make it a priority, evidencing a lack understanding of, and
commitment to, J.P.’s emotional needs. Indeed, Crespo testified that, in her opinion, Jose
did not fully understand J.P.’s emotional issues.
       As to J.P.’s educational needs, he had learning challenges for which he was
receiving special education services. Despite this, Jose did not know what grade his son
was in, nor could he name his teacher. And, again, Crespo testified it was her opinion
that while Jose had a general understanding of J.P.’s cognitive delays, he did not
understand the severity and the long-term effect of them.
       While J.P. testified that he enjoyed the company of his half siblings, a sentiment
that the evidence suggested was mutual, there were two recent incidents in which J.P.
acted aggressively towards the two younger half siblings. Due to these, and possibly
other, incidents, Laura testified that she was concerned about J.P. living in the home she
shared with Jose and their children.


                                             24
        And, lastly, and most certainly not insignificantly, J.P. expressed fear at the
prospect of living in his father’s home. Although he testified he did not remember a
choking incident, there was evidence in the record that, at some point in the past, Laura
had placed her hands around J.P.’s neck. J.P. also expressed fear of his father, testifying
that he had struck him twice, once on the hand and once on the head. And J.P. describes
other problems at his father’s house that made him uncomfortable, such as the excessive
swearing, the cockroach infestation, the sleeping arrangements, and the lack of sufficient
food.
        All told, this evidence portrayed a child who had significant psychiatric,
emotional, and academic challenges. In the two and half years since removal from his
mother’s care, J.P. had made notable progress in many of these areas. But, without a
doubt, he remained fragile with much progress yet to be made. In light of all this, the
juvenile court’s conclusion that placing J.P. in Jose’s care would create a substantial risk
of detrimental to his emotional well-being was supported by the substantial evidence
detailed above.
        Jose argues, as the social worker represented and the Bureau’s counsel argued at
the hearing, that he did all the Bureau and the court asked of him. But the decision
whether to return a dependent child to the custody of a parent—or, as here, to place a
child with a noncustodial parent—is not governed solely by whether the parent has
completed his or her case plan. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at
p. 1344 [“the decision whether to return a dependent child to parental custody is not
necessarily governed solely by whether the parent has corrected the problem that required
court intervention.”].) For example, in In re Joseph B. (1996) 42 Cal.App.4th 890, 893,
Joseph was detained because his parents were physically abusing him. By the time of the
18-month status review, the parents had completed their case plan and eliminated the
problem that lead to their son’s removal. (Id. at pp. 900-901.) Nevertheless, because
Joseph had been emotionally scarred by the abuse and was traumatized by the prospect of
being returned to his parents’ custody, returning him posed a grave risk of detriment to
his emotional well-being such that return to parental custody was improper. As the Court

                                              25
of Appeal put it, “If returning the child will create a substantial risk of detriment to his or
her physical or emotional well-being [citations], placement must continue regardless of
whether the detriment mirrors the harm which had required the child’s removal from
parental custody [citations].” (Id. at p. 894.)
       The situation here is similar. J.P. was removed from his mother’s care due to
neglect arising out of mother’s mental health and substance abuse problems. Jose, the
noncustodial parent, sought placement of J.P. and completed all components of his case
plan. But, as in In re Joseph B., supra, 42 Cal.App.4th 890, compliance with his case
plan was not the sole determinative factor. The court was still tasked with determining
the effect of the placement on J.P.’s well-being, and as we have held above, there was
substantial evidence supporting the court’s determination that J.P.’s placement in his
father’s care would have placed J.P. at a substantial risk of detriment.
       We conclude with the observation that this is a close, and difficult, case, made so
because Jose made admirable strides during the reunification period in completing his
case plan and developing a father-son bond with J.P. While there was substantial
evidence that the circumstances fell short of those required to have J.P. placed in his care,
we trust that at the next stage, when the court selects a permanent plan pursuant to
section 366.26, all involved will carefully consider Jose’s conduct.
                                       DISPOSITION
       The petition of father Jose G. for extraordinary writ relief is denied on its merits.
(Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court forthwith.
(Id., rule 8.490(b)(1).)

                                                   _________________________
                                                   Richman, J.


I concur:


_________________________
Haerle .J.

                                              26
Kline, P.J., Dissenting.
       The trial court’s finding that placing J.P. in his father’s care would create a
substantial risk of detriment to the child’s emotional well-being is not in my view
supported by substantial evidence. Accordingly, I respectfully dissent.
       Because “ ‘[t]he relationship of a natural parent and a child is a vital human
relationship which has far-reaching implications for the growth and development of the
child’ ” (In re Andrew L. (2004) 122 Cal.App.4th 178, 195), dependency law is designed
to protect it from state interference absent a compelling need to do so. As many courts
have explained, “[t]he dependency scheme is based on the law’s strong preference for
maintaining family relationships whenever possible. [Citations.] When a child is
removed from parental custody, certain legal safeguards are applied to prevent
unwarranted or arbitrary continuation of out-of-home placement. [Citations.] Until
reunification services are terminated, there is a statutory presumption that a dependent
child will be returned to parental custody. [Citation.]” (In re Yvonne W. (2008)
165 Cal.App.4th 1394, 1400.)
       Where as here, the trial court rejects the determination of the social services
agency that releasing the minor to his father would not “create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the child”
(Welf. & Inst. Code, § 366.22, subd. (a)), the burden of showing such a “substantial risk”
devolves on the court. “That standard, while vaguely worded to be sure, 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. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) Regrettably, these
improper lesser standards seem to me the ones that have been very unfairly applied.
       What we have in this case is a nonoffending and loving father who has reached out
to protect his son from dangers created by the mother and done all that has been asked of
                                              1
him. Is he perfect? Certainly not, but neither are most parents, and “[w]e do not get ideal
parents in the dependency system.” (David B. v. Superior Court, supra, 123 Cal.App.4th
at p. 789.)
       The trial court’s assessments of the facts seem to me unjustified by the whole
record; particularly the court’s statement that there is not now a “positive relationship”
between Jose and his son, which I think a gross distortion of the parent-child relationship
reflected in the record. The court’s statement that Jose and his son “don’t even speak the
same language” significantly overstates the case and is, in any case, a questionable
criterion. Most importantly, I think the trial court’s assessment of the relevant facts is
unbalanced and therefore unfair. Fairly considered, the entire record simply does not
establish the “substantial risk” needed to support the trial court’s ruling.
       I am also troubled by the trial court’s statement that “there is no evidence before
this Court that [the foster mother] has done anything to sabotage any of these
relationships, period.” That observation seems to me utterly blind to the record. I cannot
confidently say the foster mother has in fact “sabotaged” the relationship between Jose
and his son, but the record provides (and the majority opinion describes) more than
enough evidence to warrant that inference.
       While I dissent, I join the majority in hoping that, at the next stage, when the court
selects a permanent plan pursuant to Welfare and Institutions Code section 366.26, the
court and all others involved will more carefully consider the father’s conduct. I hope too
that the court will keep in mind the high value the law places on the relationship of a
natural parent and a child, and that it is not the judicial role to compare the resources or
quality of care a parent can provide against those that can be provided by a foster parent
desirous of adopting the child.




                                              2
For the foregoing reasons, I would reverse the judgment.



                                        _________________________
                                        Kline, P.J.




                                    3
