Filed 2/24/14 R.I. v. Superior Court CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


R.I.,                                                                H040486
                                                                    (Monterey County
         Petitioner,                                                 Super. Ct. No. J46732)

         v.

THE SUPERIOR COURT OF
MONTEREY COUNTY,

         Petitioner,

MONTEREY COUNTY DEPARTMENT
OF SOCIAL AND EMPLOYMENT
SERVICES,

         Real Party in Interest.




                                           I.        INTRODUCTION
         R.I. is the father of M.I., the child at issue in this juvenile dependency case. The
father has filed a petition for extraordinary writ seeking review of the juvenile court’s
orders terminating his reunification services and setting a Welfare and Institutions Code
section 366.261 permanency planning hearing. The father contends further reunification


         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
services were in the child’s best interest and that there was a substantial probability the
child would be returned to him by the 18-month review.
       For the reasons stated below, we find that the juvenile court’s findings and orders
are supported by substantial evidence, and we will therefore deny the writ petition.

              II.       FACTUAL AND PROCEDURAL BACKGROUND
       A.     Section 300 Petition
       On September 18, 2012, the Monterey County Department of Social and
Employment Services (the Department) filed a petition under section 300, subdivision (b)
[failure to protect] alleging that M.I., who had been born one month earlier, came within
the jurisdiction of the juvenile court. The petition alleged that the parents were unable to
provide regular care for the child due to their substance abuse and domestic violence.
       The mother had one other child with the father: G.I., who was born in 2010. The
mother also had two other children from a different father. At the time the petition was
filed, all three of those children were living with the maternal grandmother in a legal
guardianship. There was a prior referral concerning G.I., who had tested positive for
opiates and methadone at the time of her birth and had undergone severe withdrawals. At
that time, the mother had also tested positive for drugs, and the father had admitted using
prescription medications. The mother and father had agreed to participate in family
reunification services. During the reunification period the father had tested positive for
amphetamines, and he had been manipulative, hostile, and aggressive with the social
worker. There had also been reports of domestic violence in the home during the
reunification period.
       The petition further alleged that when M.I. was born, both the mother and M.I. had
tested positive for drugs. Hospital staff had smelled alcohol on the father’s breath. M.I.
had withdrawal symptoms and had to be placed on morphine and remained in the
hospital. The mother had admitted she used methadone pills, claiming she suffered from



                                              2
chronic pain and had prescription medication. Father likewise claimed he used only
prescription medication, although he had tested positive for opiates and amphetamines.
He claimed he did not know when the mother was using drugs.
       Maternal relatives had reported that the father was abusive towards the mother.
They reported that he prohibited her from eating for days and that he had caused her to
suffer a black eye. The mother denied any domestic violence in the home.
       A team decision making meeting was held at the hospital on September 5, 2012,
addressing the issues of domestic violence and drug use. The parents participated in the
meeting, although the father threatened legal action towards the hospital and the
Department during the meeting. The father claimed he did not need any help caring for
M.I. and claimed to have eight other children, none of whom were in his care. The
parents agreed to visit M.I. on a daily basis, to cooperate with hospital staff, and to
undergo drug testing. The mother agreed to make daily calls to get into a residential
treatment program and to attend NA/AA meetings. The father agreed to sign up for Dads
in Action and domestic violence classes.
       A second team decision making meeting was held on September 13, 2012. Father
had tested positive for amphetamines but claimed the positive test was the result of him
drinking a Red Bull energy drink. The parents had been inconsistent in visiting M.I.
Father had not attended any domestic violence classes. The mother had not made daily
calls for openings in a drug rehabilitation program. M.I. remained in the hospital and was
being weaned off of morphine.
       B.     Detention Hearing
       At the detention hearing held on September 19, 2012, the juvenile court found that
continuance in the parental home would be contrary to the child’s welfare and that
removal from the parents’ custody was necessary to protect the child’s physical or
emotional health. The court therefore determined that a prima facie showing had been
made that the child came within section 300, and it ordered the child detained.

                                              3
       C.     Jurisdiction/Disposition Report and Case Plan
       The Department filed a jurisdiction/disposition report on October 19, 2012. The
mother had been interviewed on October 11, 2012 and had admitted using drugs three
days earlier. The father had denied using any illegal substances but was reluctant to
discuss his use of prescription medications. He had provided inconsistent information to
the social worker. “For example, he stated that he attended a domestic violence class,
during a time where he claims he was at the hospital visiting the child.”
       The report noted that there may have been a recent incident of domestic violence.
On the day of the detention hearing, the mother had not appeared in court. According to
the father, the mother had gone to the hospital after hitting her head during a seizure. The
social worker had observed “a large and suspicious bruise” under the mother’s chin, but
the mother had corroborated the father’s story.
       M.I. had been released from the hospital to a concurrent foster home. The
Department had considered placing M.I. with her maternal grandmother. However, an
assessment of the maternal grandmother’s home revealed numerous other children
present, including an infant strapped into a carseat inside a playpen. The home was dirty
and there were cockroaches on the walls. The maternal grandmother had not been
participating in any of the recommended services for G.I., who remained in her care.
       The mother and father had been provided with visitation two times a week and had
been consistent in visiting M.I. The father had several conflicts with the caregiver and
believed that a piece of lint found on the child was actually mouse feces. The father
would spend the first half of the visits examining the child, writing notes, and “making
disparaging comments about the caregiver in a cooing child-like voice to the child.” The
mother appeared to be very tired during several visits and would close her eyes for
extended periods of time.




                                             4
       The Department reported that the mother and father had participated regularly in
the case plan, but that both had made only minimal progress toward alleviating or
mitigating the issues necessitating the child’s placement in foster care.
       The case plan was filed on October 22, 2012. The mother’s service objectives
included developing and demonstrating the ability to remain clean and sober. The
mother’s responsibilities included successful completion of a residential treatment
program, attendance at NA/AA meetings at least three times per week; completion of
parent education classes, the Parents as Teachers program, and the Parent Education
Group; regular attendance at counseling; and consistent participation in visitation.
       The father’s service objectives included developing and demonstrating the ability
to maintain a non-violent relationship and the ability to avoid abusive or threatening
interactions. The father’s responsibilities included completion of parent education
classes, the Parents as Teachers program, and the Parent Education Group; regular
attendance at a domestic violence program; regular attendance at counseling; and
consistent participation in visitation.
       D.     Jurisdiction/Disposition Hearing
       An uncontested hearing on jurisdiction and disposition was held on October 24,
2012. The father informed the court that he had already begun attending parenting
classes and domestic violence classes and that he had signed up for the Parenting as
Teachers program. The mother informed the court that she had completed 41 group
sessions at an outpatient drug program. The juvenile court acknowledged that the parents
were “making efforts” but instructed them that they had “a huge amount of work” to do
before they would reunify with the child.
       The father responded to the court’s comments by asking that “an investigation be
done regarding the social worker.” The father asserted that the social worker had forced
the mother to accuse the father of domestic violence. He further asserted that all of the
domestic violence allegations were untrue and that the mother was the “aggressive one.”

                                              5
The court responded by encouraging the parents to “focus on the issues” that led to the
child’s removal.
       The juvenile court then adopted the findings and orders contained in the
Department’s jurisdiction/disposition report: It declared the child a dependent of the
court and ordered her out-of-home placement to continue, and it ordered that
reunification services be provided.
       E.     Psychological Evaluation of the Father
       On November 29, 2012, Dr. William Alvarez performed a psychological
evaluation for the father. Dr. Alvarez described the father as “very defensive and
somewhat narcissistic.” He identified the father’s “poor control over anger” and his
“reported chronic pain and use of major pain medication” as risk factors. He noted that
the father might benefit from therapy, substance abuse counseling and anger
management, but he noted that the father was likely to resist therapy. According to
Dr. Alvarez, the father needed motivation to change and to commit to long-term therapy.
       When asked about the present case, the father voiced concerns about the
Department. He complained that the child was dirty and bruised when she came to the
visits. He did not believe that the Department had a plan for returning the child to him,
but he claimed to have “his ‘own plan,’ ” which included attendance at parenting classes
and a domestic violence class. He continued to maintain that he had not perpetrated any
domestic violence but acknowledged that he had “learned some useful things” from the
domestic violence class.
       The father stated that he was unaware of the mother’s drug problem until the birth
of G.I. He also believed she had overcome her drug problem after that. He was still in a
relationship with the mother at the time of the interview.
       F.     Three-Month Status Review
       A three-month status review hearing was held on January 23, 2013. The social
worker gave an oral report. She first reported that the mother had made “no progress” on

                                             6
her case plan. The social worker stated that the mother minimized her substance abuse
issues, continued to use methadone, had not entered inpatient treatment, had not signed
up for outpatient treatment, and had not provided medical records.
       The social worker then addressed the father’s progress. She described him as
being “hostile and aggressive” toward Department staff and not open to feedback or
direction. The father, too, minimized his behavior, and he blamed others for any
problems. He began his visits with a “full-body inspection” of the child and alleged that
the child was being neglected and abused. He dominated the visits, which gave the
mother little time to interact with the child. He admitted using five different prescription
drugs but failed to provide medical records. However, he had provided certificates from
a parenting program and a domestic violence program.
       The juvenile court noted that the information indicated that the parents were
engaged in “just more of the same” behavior and that they were headed down the “same
path” toward the loss of their parental rights.
       G.     Six-Month Status Review
       The Department filed a status review report on April 18, 2013 in which it
recommended that the court continue family reunification services for both of the parents.
       The mother had been addressing her methadone dependence with a doctor. She
had been trying to enter a drug treatment program, but her undocumented status made her
unqualified for the program she had been hoping to get into. The Department was trying
to help her find another program. The mother had not provided any proof of attendance
at a 12-step program. However, she had taken parenting classes, was taking anxiety
medication, and had demonstrated attentiveness to the child’s needs during visits.
       The father continued to take five prescription medications for his back pain. He
had taken parenting classes and had a certificate from a domestic violence class. He was
loving and attentive with the child during visits. However, during the visits the father
would control the mother and dominate the visitation time with the child.

                                              7
       At a hearing on April 24, 2013, the juvenile court remarked that the parents still
had “a very long way to go.” It adopted the findings and orders in the Department’s
report: It ordered the child to remain a dependent of the court in her placement and
continued family reunification services.
       H.     12-Month Status Review Report
       The Department filed a 12-month status review report on September 24, 2013.
The Department recommended that the juvenile court terminate family reunification
services and set a section 366.26 permanency planning hearing.
       The mother had entered an inpatient drug treatment program on May 15, 2013 but
had been discharged from the program on July 11, 2013, when she tested positive for
drugs. She had purchased drugs while accompanying another resident to an off-site
appointment. After her discharge from the inpatient program, the mother had not sought
any other treatment and had not participated in any AA/NA meetings. She had also
tested positive for methadone on August 30, 2013.
       The mother had participated in a parenting education group until July 18, 2013,
when she was hospitalized with pneumonia. While participating in the group, the mother
had not been open and honest about her circumstances.
       The father had likewise participated in the parenting education group, but he too
had not been forthcoming. His participation in the Parents as Teachers program had
ended because he had been uncooperative. He had, however, completed three other
parenting programs as well as a 12-week domestic violence program.
       Despite his claims of having developed insight into the negative impacts of
domestic violence, the father continued to be emotionally abusive to the mother. The
Department had begun arranging separate visits for the mother and the father because of
the father’s domination during the visits. The child was not always receptive to
interacting with the father during his separate visits, and he would become frustrated.
The Department then terminated the separate visits and reinstated conjoined visits. Some

                                             8
of the conjoined visits had gone well, but during others the father would ignore the
mother and criticize her when speaking to the child.
       The social worker provided a prognosis in the report. The mother was a
substantial risk for returning the child home because of her substance abuse relapses. It
was unlikely she would be able to reunify with the child. The same was true as to the
father, who continued to stay with the mother despite her relapses, in opposition to the
lessons he had been learning. Further, the observed interactions between the parents
indicated that domestic violence would remain an issue. After a year of reunification
services the social worker had observed the “same behaviors” by both parents. Because
the parents had been offered numerous services but were “unable to change the harmful
behaviors that impact their children the most,” the Department recommended termination
of reunification services.
       On September 30, 2013, the Department filed an update and progress report. The
report reflected that the father had participated in therapy, but he had not been honest and
forthcoming with the therapist. He was “obsessed” with the mother and tended to focus
on her needs. The father did not take responsibility for the child’s removal. He had
missed three recent appointments with the therapist.
       I.     Trial Briefs
       Prior to the 12-month review hearing, the Department filed a trial brief. The
Department noted that since the filing of its last report, the parents had not attended two
scheduled visits with the child, and they had not called to cancel or reschedule. The
Department argued that the child should not be returned to the parents because they had
not fully participated in services nor made the necessary progress to justify either return
of the child or an extension of services. Specifically, the mother had not “engaged in any
sort of meaningful participation to address her substance abuse problem.” The father did
not appear to understand the mother’s substance abuse issue, he had “developed no



                                              9
insight into his issues,” and he continued to “display inappropriate behavior towards the
mother and Department staff.”
       In his trial brief, the father argued for return of the child. He noted that he had
successfully completed several parenting classes as well as 12 weeks in a domestic
violence program. He had “learned a lot and benefit[t]ed from therapy.” He had
regularly visited the child with the exception of two missed visits.
       In her trial brief, the mother requested an extension of services. She admitted
having been discharged from her drug rehabilitation program and that she had not been
participating in the services that she had been accessing through the program. She
remained on a waiting list for a counseling program. She was participating in the Parents
as Teachers program and had been applying the parenting skills she was learning. During
visitations with the child, she was attentive to the child’s needs and had developed a
closer bond with the child. The mother complained that her individual visits with the
child had been terminated.
       J.     12-Month Review Hearing
       The contested 12-month review hearing was held on December 17, 2013. The
father, mother, and social worker all testified.
       The father listed the parenting classes he had completed and described what he
had learned. He did the same for the domestic violence classes. He denied hitting the
mother in April of 2013. He claimed the domestic violence program had helped his
relationship with the mother. The father testified that seeing the therapist had helped him
recognize his mistakes. He understood he was responsible for the child’s removal and
that the child should always come first. He was willing to separate from the mother. The
father acknowledged he had not gone to see the therapist since August.
       The mother testified that she spent almost two months in the residential treatment
program. While there, she participated in parenting education. She had attended NA/AA
meetings but had never shown her attendance cards to the social worker. She admitted

                                              10
she had never gone to therapy. She had not entered another drug treatment program
because the costs were not covered. She was willing to separate from the father so that
the child could be returned to the father.
       The social worker explained that the Department had determined that separate
visits were necessary because the father was very controlling during visits when the
mother was present. The supervisor had not been able to assess the mother during those
visits. When a representative from the Parents as Teachers program came to a visit, the
father was uncooperative. He refused to take any instruction from the representative,
who was afraid of him. However, since the conjoined visits had resumed, the social
worker had not observed as much tension between the father and the mother.
       The social worker continued to believe it was unsafe to place the child with the
father and that there was no probability the child could be returned to him if services
were extended to 18 months. Although the father had participated in the services and
claimed he was willing to separate from the mother, the social worker did not believe he
had changed or that he would in fact separate from the mother.
       The juvenile court’s findings echoed the social worker’s testimony. The court first
noted that the parents’ failure to care for any of their other children was “the first clue as
to what would happen” if M.I. was returned to them. The court found that the father had
“domestic violence issues,” that he had rejected therapy, that he continued to be
enmeshed with the mother, and that he was “so untruthful with everybody trying to help
him that it’s hard to put much credence on anything he says.” The court found that the
father should have provided prescriptions for his pain medications, shown an
understanding of the mother’s drug problem, and separated from the mother previously.
The court did not believe the father was telling the truth when he claimed he would
separate from the mother. The court found that February 19, 2014 was the likely date by
which the child could be placed for adoption or be subject to other permanency planning,
and it set a section 366.26 hearing for April 15, 2014.

                                              11
       K.     Father’s Writ Petition
       On December 19, 2013, the father filed a notice of intent to file a writ petition. In
his petition filed on January 15, 2014, the father contends further reunification services
were in the child’s best interest and that there was a substantial probability the child
would be returned to him by the 18-month review.

                                   III.   DISCUSSION
       Before evaluating the father’s contentions, we will provide an overview of the
applicable legal principles and the applicable standard of review.
       A.     Legal Principles
       After a child is removed from a parent’s custody, the juvenile court generally must
order reunification services for the child and the parents. (§ 361.5, subd. (a).) When the
child is under three years of age at the time of removal, reunification services are
presumptively limited to six months. (Id., subd. (a)(1)(B).) Reunification services may
be extended up to 18 months from the date of removal if the juvenile court finds a
substantial probability that the child will be returned to the physical custody of his or her
parent or guardian within that extended time period or that reasonable services have not
been provided to the parent or guardian. (Id., subd. (a)(3).)
       At all status review hearings, the court must consider the safety of the child
(§ 366, subd. (a)(1)), the Department’s efforts (id., subd. (a)(1)(B)), and the “extent of
progress” that the parents have made “toward alleviating or mitigating the causes
necessitating placement in foster care” (id., subd. (a)(1)(E)). At the 12-month review
hearing, “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.”
(§ 366.21, subd. (f).) “The failure of the parent or legal guardian to participate regularly



                                             12
and make substantive progress in court-ordered treatment programs shall be prima facie
evidence that return would be detrimental.” (Ibid.)
       “The standard for showing detriment is ‘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 than capable than an available
foster parent or other family member.’ [Citation.]” (In re Yvonne W. (2008) 165
Cal.App.4th 1394, 1400 (Yvonne W.).) “Rather, the risk of detriment must be substantial,
such that returning a child to parental custody represents some danger to the child’s
physical or emotional well-being. [Citations.]” (Ibid.)
       While a parent’s compliance “with the reunification plan by attending the required
therapy sessions and visiting the children is to be considered by the court, . . . it is not
determinative.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143 (Dustin R.).) In other
words, parental compliance with the reunification plan does not automatically result in a
child’s return to parental custody. (Ibid.) Rather, the decision to return the child to
parental custody depends on the court’s assessment of the effect that return would have
on the physical and emotional well-being of the child. (§ 366.21, subd. (f).) When the
juvenile court considers whether to deprive a parent of custody, it is concerned about the
parent’s “grasp of the important parenting concepts—things such as a child’s need for
security, adequate nutrition and shelter, freedom from violence, proper sanitation,
healthcare, and education.” (David B. v. Superior Court (2004) 123 Cal.App.4th 768,
790 (David B.).) Thus, the court must consider whether the parent corrected the problem
that required court intervention and the effect such return would have on the child. (In re
Joseph B. (1996) 42 Cal.App.4th 890, 901.)
       An appellate court reviews the juvenile court’s finding that returning a child to the
parent’s custody would be detrimental under the substantial evidence test. (V.C. v.
Superior Court (2010) 188 Cal.App.4th 521, 529.) In reviewing the record for
substantial evidence, “we consider the evidence favorably to the prevailing party and

                                               13
resolve all conflicts in support of the trial court’s order. [Citation.]” (Yvonne W., supra,
165 Cal.App.4th at p. 1401.)
       B.     Analysis
       Having reviewed the entire record on appeal, we determine that substantial
evidence supports the juvenile court’s findings and orders. The evidence shows that the
father received reunification services as to M.I. for 12 months after M.I. was born
addicted to drugs, and after failing to reunify with his other daughter, who had become a
dependent of the court two years earlier for the exact same reason. The father’s service
objectives included developing and demonstrating the ability to maintain a non-violent
relationship and the ability to avoid abusive or threatening interactions. He was required
to complete specific parenting education programs and regularly attend counseling.
       While the father complied with the case plan to some extent, by participating in
parenting and domestic violence programs, this is insufficient to compel reversal of the
juvenile court’s ruling. (Dustin R., supra, 54 Cal.App.4th at p. 1143.) His case plan
progress was minimal. The father consistently demonstrated he had not yet developed
the ability to maintain a non-violent relationship or the ability to avoid abusive or
threatening interactions. He was overtly critical of M.I.’s caregiver, he constantly
complained about the Department and was hostile towards staff, and he was domineering
towards the mother. He did not complete one of the parenting programs because of his
failure to cooperate. He remained with the mother, who continued to use drugs and failed
to complete a rehabilitation program. Finally, although he had participated in therapy, he
had not been focused on self-improvement but on the mother; moreover, he had missed
the last three therapy appointments prior to the 12-month review hearing.
       The facts here contrast with those in Yvonne W., supra, 165 Cal.App.4th 1394,
where “[t]he uncontroverted evidence” showed that the mother had “completed her case
plan.” (Id. at p. 1401, italics added.) In that case, the child had been removed due to the
mother’s drug use, and the mother had engaged in extensive reunification services within

                                             14
the first six months after the removal. (Id. at p. 1397.) The mother was “committed to
her sobriety,” appeared to have benefitted from the reunification services, and had made
changes that were “in her children’s best interests.” (Id. at p. 1401.) She was safely
parenting another child. She had done “everything Agency asked of her, including
eliminating the conditions that led to Yvonne’s out-of-home placement.” (Ibid.) Thus,
substantial evidence did not support a finding of detriment under section 366.22. (Id. at
pp. 1400-1402.)
       In this case, the juvenile court could reasonably determine that, while the father
had made some progress during the reunification period, he was not yet ready to care for
his young child. In particular, the evidence supported a finding that the father failed to
“grasp” certain “important parenting concepts,” including the child’s need for freedom
from violence and her need for protection from the mother’s potential substance abuse
relapses. (David B., supra, 123 Cal.App.4th at p. 790.) The juvenile court also found
that the father lacked credibility, particularly regarding his claim that he was willing to
separate from the mother. Importantly, the social worker did not believe there was any
probability the child could be returned to the father if services were extended to
18 months. As the father had failed to reunify with his other daughter and had failed to
make substantive progress in his case plan during the 12 months that he had been
provided reunification services as to M.I., substantial evidence supports the juvenile
court’s findings that there would be a substantial risk of detriment to the safety and well-
being of the child if she were returned to the father. (§ 366.21, subd. (f).) We will
therefore deny the father’s writ petition.

                                   IV.       DISPOSITION
       The petition for extraordinary writ is denied.




                                               15
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




                                    16
