Filed 3/4/15 P.B. v. Super. Ct. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

P.B.,

     Petitioner,

         v.

THE SUPERIOR COURT OF ORANGE                                           G051060
COUNTY,
                                                                       (Super. Ct. No. DP014288-002)
     Respondent;
                                                                       OPINION
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,

     Real Parties in Interest.



                   Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied.
                   Susanna Warner for Petitioner.
                   Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel for Real Party in Interest.
                   Law Office of Harold LaFlamme and Jess Ann Hite for Minor.
              The court terminated P.B.’s (father) reunification services with respect to
his daughter, now nine years old, (minor) and set a Welfare and Institutions Code section
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366.26 hearing. Father seeks a writ of mandate directing the court to order that he be
given physical custody of minor, as well as a family maintenance plan. He contends no
substantial evidence supports the court’s finding that returning minor to his care would
have created a substantial risk of detriment to her. We disagree and deny father’s
petition.

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                                          FACTS


              On March 10, 2013, seven-year-old minor was detained. The amended
section 300 petition filed by Social Services Agency (SSA) alleged father failed to
protect minor (§ 300, subd. (b)) and abused a sibling (§ 300, subd. (j)). The allegations
included the following. Mother applied for and was granted temporary restraining orders
against father protecting both mother and minor. On March 10, 2013, mother told police
that father took minor in violation of the restraining order (although father claimed
mother left minor in his care). On that same day, mother was found to be heavily sedated
by prescription medicine and unable to care for minor. The parents repeatedly violated
the restraining order. The parents have a history of domestic violence, both physical and
verbal. Each parent has a criminal history. Father’s criminal history included arrests
and/or convictions for driving with a suspended license and under the influence of
alcohol or drugs, causing bodily injury; child cruelty with possible injury; spousal
battery; and possession of a controlled substance. Minor was a previous dependent of the
juvenile court pursuant to a sustained petition which had alleged, inter alia, that father has

1
              All statutory references are to the Welfare and Institutions Code.
2
              We recite facts relevant to father, since mother did not seek writ relief.

                                              2
a history of abusing controlled substances and alcohol, and minor’s paternal half-sibling
was declared a dependent in 1996, after she sustained a fractured left arm.
              SSA’s jurisdiction/disposition report included the following . The social
worker believed “mother has an unresolved mental health history based on her frequent
emotional outbursts, erratic behavior, emotional instability, and poor judgment.” Father
“has a lengthy criminal history,” including his pleading guilty in 2005 to child abuse and
endangerment, driving under the influence of alcohol and causing injury, and driving on a
revoked license. In March 2013, he pleaded guilty to driving on a suspended or revoked
license. The social worker believed “the parents put the child at risk of abuse and neglect
through their dysfunctional relationship” and by their violating the restraining order. The
social worker had concerns about minor’s education as she had “missed a great deal of
schooling” and had frequently changed schools.
              SSA’s service objectives for father required him to express anger
appropriately; stay sober and free from alcohol and drug dependence; meet minor’s
physical, emotional, medical, and educational needs; protect minor from emotional harm;
and not behave in an abusive or threatening manner. Father was to complete a domestic
violence program, general counseling, and parenting education, to submit to substance
abuse testing, and to participate in a 12-step program.
              On April 30, 2013, minor was placed with foster parents.
              On July 30, 2013, father pleaded no contest to the amended petition’s
allegations. The court found them to be true and declared minor a dependent of the court.
The court adopted the recommended case plans for the parents, and approved visitation of
three times a week.
              For the six-month review hearing, SSA reported that father had completed
parenting and anger management classes and individual counseling. He was currently
taking batterer’s treatment classes. But he had not implemented the skills he had learned
into his daily behavior. He still displayed behaviors of power and control, especially

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toward minor, making visitation demands on her, showing little concern for her feelings,
becoming angry and agitated if minor expressed disagreement, and talking to her
negatively about mother. He drug tested, but consistently tested positive for oxycodone;
he submitted no proof he had a prescription for the medicine. He drank alcohol, possibly
while driving. Father denied any consensual contact with mother, but mother claimed
otherwise. Father visited minor consistently, but the social worker believed he did not
understand or pay attention to how his behavior or statements impacted minor. Minor
adamantly expressed she did not want “off grounds visits” with father; in other words,
she wanted the visits to be supervised. Minor told the social worker, her therapist, and
the foster parents that the frequency and duration of parental visits were too much for her,
and impeded her participation in extracurricular activities or playing with peers.
              Father’s case plan remained the same, except he was no longer required to
attend parenting classes. The court set a 12-month review hearing, adopted the parents’
recommended case plans, and reduced visitation to twice weekly.


12-Month Review
              In its 12-month review report, SSA recommended, in minor’s best interest,
that the parents’ reunification services be terminated and a section 366.26 hearing be set.
Father maintained stable housing and reported he continued to work full-time. He
participated in individual counseling and batterer’s treatment.
              Father had missed over a month and a half of drug testing, and had tested
positive for marijuana and oxycodone. He had a medical marijuana card, but no current
court approval allowing him to smoke marijuana. Father was attending 12-step meetings.
His pain management doctor’s office reported father was being treated for elbow and leg
pain and edema, with prescriptions for oxycodone, Dilaudid, and Restoril, which would
cause him to test positive for benzodiazepines, opiates and oxycodone. Father continued
to drive without a license, even though SSA had given him a monthly bus pass. At a

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September 23, 2014 meeting, the social worker and the foster parents noticed father
smelled like alcohol; he had driven there on the freeway.
              Father consistently visited minor, but had trouble managing and redirecting
her negative behaviors. He “continued to make inappropriate comments to the child.”
Minor preferred that her visits with father be monitored.
              At an event at minor’s school on the evening of June 13, 2014, father was
scheduled to visit minor. But mother learned about the event from the school’s Web site.
Two hours after father arrived at the school event, mother arrived and was angry. Father
left. Mother stayed and followed minor around. When people gathered in a semi-circle
around the school principal for the announcement of raffle prize winners, mother stood
right behind minor, touched her, leaned close, and whispered in her ear, even though
minor shrugged her off. Mother argued with the foster parents, and grabbed minor’s arm
twice. Mother left when the foster mother decided to look for the campus police officer.
Minor was crying, shaking, and upset. She told the foster parents she thought mother was
going to take her. She said that every time she has been in foster care, mother has tried to
take her.
              Thereafter, minor refused to visit with mother, saying she was afraid
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mother would take her or would try to whisper in her ear.
              Father continued to have unauthorized contact with mother, in violation of
the criminal restraining order. At a court hearing in March 2014, mother told the social
worker “all about a conversation that the [social worker] had with [father] the previous
night.” In July 2014, mother told SSA she had contact with father in person and by
telephone during the last few months. In August 2014, mother told the social worker she
had a birthday present for minor from mother and minor’s siblings. The next day, father

3
              On October 1, 2014, the social worker persuaded minor to have a “good
bye visit” with mother. Minor insisted that two social workers and the foster parents be
present. At the end of the visit, minor said she was unwilling to visit with mother again.

                                             5
gave minor a birthday present that appeared to be from mother; the gift tag bore mother’s
writing and was from mother’s other children.
              In August 2014, mother showed up at the mall, where father had a
scheduled visit with minor immediately after a court hearing. While father was in the
Dave & Busters’ bathroom changing his clothes, minor told the visitation monitor that
she saw mother. Minor ducked under a table and starting crying. When father returned
to the table, minor acted as though nothing had happened, although she had tears in her
eyes. Father, minor and the monitor then went to Guitar Center for minor’s drum lesson.
Guitar Center employees blocked mother from entering the area where minor was,
because mother had been acting “sketchy.” The employees stated they recognized
mother because she had come in with father a week or two earlier to schedule the drum
lessons. Father denied telling mother he was going to visit minor after the court hearing,
and believed mother had followed him to the mall when he walked there from the
courthouse. Mother stated she was already at the mall eating when she noticed minor.
              In September 2014, father told the social worker that mother was in his
home when he returned home from a meeting with the social worker and the foster
parents. When the social worker asked whether father had phoned the police, father
replied, “‘No, I didn’t, what I wanted to do is beat the shit out of her.’” He also said,
“‘Somebody needs to do something about this, I’m either going to call the cops or shoot
her.’”
              Father had recently had an intimate relationship with another woman, who
was under court supervision, had severe unresolved mental health issues, and did not
have custody of her children. Father complained that this woman was harassing him after
his visits with minor. Father said, “‘I’m so close to getting up and punching [this
woman] in her face and knocking her teeth out.’”
              Meanwhile, minor was thriving in the foster parents’ home. She continued
to struggle academically, but with the support of the foster parents and the additional

                                              6
services she received at school, was making some improvements. She participated in
weekly individual therapy, had decreased her statements about death, and was now
talking more about adoption. She stated she would like to be adopted by the foster
parents and felt it was a safer environment for her. She showed little concern about the
possibility of not seeing her parents anymore.
                                                                               4
              The 12-month review hearing commenced on August 26, 2014.


              1.            Mother’s initial testimony
              Mother testified she was not in a relationship with father and had no contact
with him. She testified that her report to the social worker that she had contact with him
was false.


              2.            Minor’s therapist’s testimony
              Minor’s therapist testified minor’s visitation with mother was detrimental
and should cease for the foreseeable future. Minor’s therapist believed it would be
detrimental to minor not to have visits with father, but the visits should be monitored.
Minor had told her therapist the parents’ relationship scared her sometimes. For
example, when mother had unexpectedly arrived at minor’s drum lesson, minor had been
scared and wondered how mother had known she would be there.


              3.            Father’s initial testimony
              Father testified he had learned in his classes how to deal with anger and
break the cycle of domestic violence. For example, during the incident at minor’s school,



4
              At the original 12-month review hearing on June 9, 2014, the court set a
section 366.26 hearing, but it subsequently granted father’s section 388 petition to
recalendar a 12-month review hearing.

                                             7
when father saw mother, he “took off running,” instead of insisting that it was his turn to
see minor.
              Father testified his support system consisted of his parents, brother, friends,
and neighbors. Conversely, he testified he did not have a 12-step sponsor, because he
was advised “not to make any more friends anywhere or have any kind of relationship
with anybody, so I just shut everybody off.” The people at the 12-step meetings were
like a family; he has friends who come home from the group to his house. He no longer
had an alcohol problem; his last relapse had been about eight months before. At the
meeting with the social worker and the foster parents, he had not been drinking and in
fact had tested negative for alcohol that day.
              Father testified he was not in a relationship with mother. When mother has
shown up at father’s visits with minor, it was not because father ever told mother where
they would be. During the drum lesson incident, father had gone into the dressing room
to change out of his suit and when he came out, minor was under the table and had tears
in her eyes. He found out later that minor thought she had seen mother. Father had not
told mother they would be there and he had not invited her to come.
              The last time father had seen mother outside of court was about three
months earlier, when mother came to father’s home looking for food. Father asked
mother how she got in and told her to leave. Father had the door locks changed after that
episode.


              4.            Father’s therapist’s testimony
              Father’s therapist testified she believed mother “was inserting herself into
[father’s] life without invitation.” The therapist believed father was not a risk to minor at
this time because he knew how to control his anger.




                                                 8
               5.             Mother’s subsequent testimony
               On November 21, 2014, almost three months after she first testified, mother
took the stand again and changed her testimony. She apologized “to everybody in the
courtroom,” saying: “I will be telling the truth about everything that I say right now.
Yes, I have had contact with [father].” Mother had contact with him “on a daily basis.”
She stayed in his home every night; he let her stay there because she had no other place to
live.
               Father had physically abused her. He would get angry at night unless she
went “to bed right away towards the wall” — so angry that he would grab a metal
baseball bat from under his bed and raise it. Once, he hit her on the leg with the bat.
Mother screamed, and father said, “If you woke my mom up you’re dead.” A week
before, he had become angry and threw a hard piece of fruit (like a mango or a
pomegranate) at the back of her arm, causing a bruise.
               Father also abused her verbally, which hurt her more than the physical
abuse: “[T]he verbal and mental abuse . . . is far worse than . . . almost any physical
injury you can have because the bruises go away but the words do not . . . .” Last
night he had said to mother in front of his friend: “‘You are nothing but a piece of
shit. . . . Everybody wishes you would die. Look at you. Look at you. You’re skin and
bones and nobody wants you around. Here eat, eat. You want something. You don’t?
Then starve.’” He would shout words at her “repeatedly like retard, retard, retard
for . . . ten minutes straight.”
               She did not have a key to his home. On September 23, she was in his
garage and had taken barbecue chicken and a cold baked potato from the garage
refrigerator. They always ate together, “mostly whatever his mom makes. Like last night
[they] had Mexican soup.”
               When mother’s attorney asked mother if she realized her testimony would
hurt both parents’ chances of reunifying with minor, mother said, “I understand that, but I

                                             9
can’t do what I’ve done in the past with my ex-husband. I can’t keep my mouth shut or
the lies.”
               Father had implored mother, “Let the lime light shine on me because I was
in jail, during the last case. ‘Please . . . , just so they give her to one of us, please.’”
Mother had replied, “‘What’s wrong with her going to me because you have domestic
violence? . . . I don’t have nothing.’” He said, “‘No, you will take off to Wisconsin with
her again. I know you will.’ And then [mother] agreed.”
               Father had told mother she did not need to read SSA’s reports.
               The court noted mother had been emotional and crying throughout her
testimony.
               As to the drum lesson incident, father had texted mother they were at Dave
& Busters, and to come to Guitar Center later. Mother sat at “the opposite side of the bar
[at Dave & Busters] to have an angled vision of [minor]” because it had been so long
since [she had] seen her.” Mother did not want minor to see her because she did not want
to get anyone in trouble. But minor saw mother. Minor’s reaction was “devastating,”
forcing mother to draw her own conclusions about “why she did that.”
               Mother did not believe father would harm minor. He had never harmed
mother in front of minor. Father had changed “a lot” due to his classes and now “checks
himself before going towards me and doing anything,” although he still scared mother
“with his verbal ways and the look on his face.”


               6.             Father’s subsequent testimony
               Father took the stand again. He testified mother’s recent testimony was not
true. The only time he had seen her sleep at his home in the last six months was when he
saw her laying on some towels in his backyard at around 2:00 a.m. In the last six months,
he had texted her around five times because she said she needed food. Father did not
have a bat under his bed, had not hit her, and had not thrown a piece of fruit at her. He

                                                10
had noticed minor was upset at Dave & Busters, so he believed minor probably did see
mother there. Father was with the visitation monitor when they first signed minor up for
drum lessons. Father and mother had not been in an intimate relationship for over a year.


The Court’s Ruling
              The court found mother’s November 21, 2014 testimony was credible. It
found father and his therapist were not credible witnesses. The court found returning
minor to parents would create a substantial risk of detriment to her safety, protection, or
physical or emotional well-being. The court terminated the parents’ reunification
services and set a section 366.26 hearing for March 24, 2015.


                                      DISCUSSION


Substantial Evidence Supports the Court’s Finding That Returning Minor to Father’s
Custody Would Create a Substantial Risk of Detriment to Her Safety, Protection, and
Well-being
              Father contends the court erred by finding that returning minor to his care
would create a substantial risk of detriment to her. He points out he completed parenting
and anger management classes and individual counseling, and currently participates in a
batterer’s intervention program, drug testing, and 12-step meetings (although he states he
has not shown the social worker evidence of his attendance at 12-step meetings). He
contends there is no substantial evidence he is currently in a domestic violence
relationship, and asserts mother’s testimony was not credible.
              Because the court’s ruling at the 12-month review hearing took place over
18 months after minor was detained, both parties argued this case in their appellate briefs
                                                                                 5
as though the court’s order took place at a contested 18-month review hearing. We

5
            “In some cases continuances and delays will cause the 12-month
permanency hearing under [section] 366.21[, subdivision] (f) to be completed 18 months

                                             11
summarize the law governing a court’s finding of detriment at the 18-month review
hearing. Under section 366.22, at the 18-month hearing a court must return a child to a
parent’s care unless the social worker proves, by a preponderance of the evidence, that
the return “would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child.” (§ 366.22, subd. (a).) The statute
provides guidelines for a court to follow in assessing detriment. A parent’s failure “to
participate regularly and make substantive progress in court-ordered treatment programs”
is prima facie evidence of detriment. (Ibid.) In assessing the risk of detriment, the court
must consider “the extent to which [the parent] availed himself or herself of services
provided.” (Ibid.) The court shall also consider the “extent of progress that has been
made toward alleviating or mitigating the causes necessitating placement in foster care.”
(Ibid., id., subd. (a)(1)(E).) Ultimately, the court must assess the effect that returning the
child to parental custody would have on the child’s safety, protection, or physical or
emotional well-being. (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
              The substantial evidence standard of review applies to a court’s finding that
returning a child to the parent’s custody would be detrimental. (Robert L. v. Superior
Court (1996) 45 Cal.App.4th 619, 625.) A reviewing court does “not evaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.” (In re L.
Y. L. (2002) 101 Cal.App.4th 942, 947.) It draws all reasonable inferences and considers
the record in favor of the juvenile court’s finding. (Ibid.) The appellant bears the burden
of showing the court’s detriment finding is not supported by substantial evidence. (Ibid.)


or more from the date the child was physically removed from the custody of the parent.
When that happens, there is a difference of opinion whether the hearing should be
considered a 12-month permanency hearing under [section] 366.21[, subdivision] (f) or
an 18-month permanency review hearing under [section] 366.22.” (Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2014) § 2.153[1], p. 2-509.) Under the “better
and more widely followed view,” the 12-month permanency hearing merges into and
becomes “the 18-month permanency review hearing without the necessity for a second or
separate hearing.” (Ibid.)

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              Father has failed to carry his burden. Substantial evidence shows he failed
to achieve his case plan’s objectives of protecting minor from emotional harm and
stopping his abusive and threatening behavior. Mother’s testimony showed father
continued to (both physically and verbally) abuse and threaten mother, and that he told
mother about his planned visit with minor at a mall (thereby causing minor emotional
harm). Although father asserts mother’s November 21, 2014 testimony was not credible,
the trial court found otherwise. The court observed mother’s disclosures were adverse to
her own interests and had “a ring of truth.” The court further found mother was not
motivated by malevolence toward father, but instead had offered her testimony “out of a
concern for her past experiences and the potential impact that it would have . . . on her
daughter.”
              Substantial evidence also shows father failed to achieve his case plan’s
objectives of living free from drug or alcohol dependency, and progressing in a 12-step
program. The social worker and the foster parents observed that father continued to
abuse alcohol and even drove without a license while under the influence of alcohol.
Father had failed to obtain a sponsor in his 12-step program. The court noted father’s use
of alcohol along with his prescription medicines raised “significant concerns.”




                                             13
              The court found father’s testimony was not credible. It noted the
disconnect between father’s testimony he did not obtain a 12-step sponsor because his
therapist had advised him to cut off contact with everyone, versus his testimony he had a
support system comprised of his family and neighbors. The court noted father testified
he saw mother sleeping in the backyard only after mother testified on November 21,
2014, that she slept at his house. As to father’s testimony he did not phone the police
when mother showed up at his house because she needs help (rather than incarceration),
the court noted these “magnanimous” comments conflicted with father’s angry statements
that he felt like beating or shooting her. These incongruous statements suggested father
was gaming the process. The court further found father had been hostile, agitated, or
displeased when asked certain questions on the stand.
              The court found father’s progress in therapy was minimal. Father had a
propensity to manipulate and was not candid with his therapist. The court found father’s
therapist had been “captured to an extent where she lost the ability to . . . opine in a
                                 6
professional detached fashion.”
              The court made thorough findings of credibility and fact. Substantial
evidence supports its finding that returning minor to father’s custody would have created
a risk of detriment to her safety, protection, and well-being.




6
              Father argues the court was “not qualified to determine” if his therapist’s
professional opinion was accurate, since there was allegedly no “conflicting professional
testimony or evidence to discredit” his therapist. Father provides no reasoned analysis or
legal authority to support his assertion, and it is therefore forfeited. (In re Sade C. (1996)
13 Cal.4th 952, 994.)


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                                    DISPOSITION


            Father’s petition for a writ of mandate is denied.




                                               IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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