1 Filed 7/11/13 In re J.P. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SUPERIOR COURT, Defendant and Respondent,

CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest. A138432 (Contra Costa County Super. Ct. No. J10-01433)

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 Co ntra Costa County Children a nd 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 hi s father under a family maintenance plan. On April 11, 2013, rejecting the Bureau’s recommendation, th e juvenile court terminated2 services to Jose, and schedu led a hearing under Welfare a nd Institutions Code section 366.26 1 to consider a permanent plan and termination of parental rights. Jose now petitions for extraordinary wr it relief. Opposition has been filed on J.P.’s behalf. We conclude substantial eviden ce supports the juvenile court’s finding that placing J.P. in Jose’s care woul d create a substantial risk of detriment to J.P.’s safety and well-being. We therefore deny the petition. BACKGROUND 2 On October 1, 2010, police responded to an apartment where Mi chelle 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 Mich elle’s hospitalization on a section 5150 hold. Michelle was supposed to be receiving treatme nt for mental health problems, but she had not been taking her medicati ons and her behavior had beco me 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 vis it at Michelle’s apartment six days after her 5150 hold and found her in a state of dish evelment. J.P. was absent from school that day (apparently a common occurrence), and wh en 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 offi cer assistance, Michelle admitted that J.P. was sleeping inside the apartm ent and allowed the social wo rker and deputies to enter. The apartment had a “very strong negative o dor” 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, ro tten food, empty bottles, and

1 All subsequent statutory references ar e 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 irre levant to the issues before us.

3 Michelle had another adult son, Orla ndo, who did not live with her, and two other sons, Armando and Raymond, who lived with their paternal grandparents.3 other trash strewn about. A broken cerami c 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 wo rker that she stopped taki ng her medications because she ran out, but one of the deputies f ound 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 soci al 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 te mporary 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 sc hizophrenia. She had been drinking more and more lately, and her beha vior was out of control beca use 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, no r had he ever been married to, Michelle, and he pu rportedly knew nothing about he r 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. interchang eably as Jose’s wife and partner. Laura testified that she and Jose had never married.4 Section 300 Petition and Detention On October 12, 2010, the Bureau filed a section 3 00 petition alleging that Michelle failed to protect J.P. within the m eaning of section (b) because she had mental health, drug, and alcohol problems that inhib ited her ability to protect and parent him. The petition identified Jose as the alleged fathe r. 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 allega tions in the petition and took jurisdiction over J.P. It also appointed Orla ndo as J.P.’s educational representative, and continued the matter to January 3, 2011 for disposition. Disposition In the Bureau’s disposition report, the soci al 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 re member or understand things, which would make him angry. J.P. was in kindergarte n, and it was suspected that he had some learning delays. The social worker was seeki ng to have him formally assessed, but in the meanwhile, he was receiving speech services. According to the social work er, 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 work ed advised he had two prior arrests—one in 2002, the other in 2003—for posse ssion 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 cr iminal activity or that he was convicted of any crime. Jose also claimed that his only hi story of drug use was trying marijuana years ago. This conflicted with Michelle’s re presentation that she used methamphetamines5 with Jose, as well as a claim by one of Mich elle’s sons that he had seen Jose give Michelle drugs on more than one occasion. Jose advised the social worker that he a nd 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 intere st in caring for J.P., but he did not have a suitable living arrangem ent at that time. The Bureau recommended family reunifi cation services for Michelle, with services for Jose as well if he elevated his pa ternity status to presum ed. 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 3 88 request, seeking to change the court’s out-of-home placement order. As the nonoffendi ng 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 se ction 388 request for April 18, 2011, which hearing date was ultimately continued to May 25 for a contested hearing. Following the contested hearing, the cour t denied Jose’s section 388 request but adopted the case plan for him. It required hi m to stay sober and sh ow his ability to live free from drugs and alcohol; submit to random drug testing; meet J.P.’s physical, emotional, medical, and educational needs; coope rate with the social worker; successfully6 complete a parenting class; a nd demonstrate that he would no t permit others to physically abuse J.P. The court maintained the stat us 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 neurodeve lopmental evaluation, which resulted in a diagnosis of attention deficit hyperactivity di sorder (ADHD), inattentive type. It was recommended that J.P. be prescribed a neurostim ulant, although his fo ster mother felt she was able to manage his behavior at home w ithout 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 deve loped a close bond with his foster mother and felt safe with her. As to Michelle’s status, the Bureau ad vised that she continued to suffer from mental health problems and was sporadic in he r 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 issu es were due to mental health issues, substance abuse, or both, her circumstance s had not improved since J.P.’s removal, making his return to her car e unsafe at that time. Jose, on the other hand, had been fairly cons istent in his visits. He often brought his other three children with hi m, and they enjoyed playing w ith J.P. Initially, Jose was minimal in his interactions with J.P., wh ich was possibly attributable to a language7 barrier. 5 Over the course of numerous visits, however, Jose had become more engaged with his son and was develo ping a parental bond. Li kewise, J.P. was becoming increasingly enthusiastic about visits with his father. Despite Jose’s progress, the Bureau s till had many of the same concerns about placing J.P. with him, concerns that, accordi ng to the Bureau, Jose failed to acknowledge or understand. Despite having tested pos itive for methamphetamine (in May 2011), as well Michelle’s statement that she has us ed drugs with him and two arrests and a conviction for possession of narc otics, Jose continued to de ny ever having used drugs. He also had not acknowledged J.P.’s fear of La ura, or addressed it with J.P. The Bureau recommended that reunification services be ex tended for both Michelle and Jose, with the social worker concluding as follows: “This work er has tried to help [Jose] recognize that J.P. needs more from him as a pa rent 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 dis tinct 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 Bure au filed an ex parte application requesting authority to approve up to thirty consecutive overnight visits for Jose. Acco rding to the social worker, both J.P. and Jose were requesting overn ight 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 re sults 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 prim arily 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.8 12-Month Status Review In a 12-month status review report prep ared in November 2011, the Bureau recommended that the court continue services to Jose but terminate th em as to Michelle. While Michelle was not drug te sting nor participating in a substance abuse treatment plan, Jose remained compliant w ith 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 Jo se 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 alo ng 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 open ed 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 pl ace on December 5 as scheduled, and was continued fi rst to January 12, 2012, a nd then to February 27. In a memorandum prepared prior to the February 27 hearing, the Bureau advised the court that J.P. was continui ng 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 participati ng in random drug testing with negative results. He was no longer participating in family therapy, however. According to the therapist, he was not9 committed to the process and e xhibited 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 pl acement 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 car e for J.P., but did not have a suitable living arrangement. The Bureau further advised the court th at although family therapy had been terminated in January, Jose otherwise remained in comp liance 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 reuni fication services to Jose and continuing J.P. in foster care with a goa l 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, inst ead 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 so cial worker Marynella Woods submitted a report to J.P.’s counsel advising, as pertinen t here: “At your request I conducted another home visit and assessment of yo ur 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 his10 father. As you know, for some time now [J.P.] has not want ed 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 we re 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 mo ther.’ Frankly, I find this comment to be disturbing because what we hope fo r 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 th ing, 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 plac ement. [J.P.] is simply too emotionally vulnerab le, 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. Fo llowing the hearing, the court found extraordinary circumstances, or dered 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 increase d visitation during the

summer. 24-Month Status Review Prior to the August 13 heari ng, 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 sti ll having weekend visits. The social worker also advised that she a ttempted to increase overnight visits, but these visits were not supporte d by J.P.’s counsel or his fost er 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. recei ved 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 show ers. The social work er spoke with Jose, however, who stated that J.P. did bathe when he was there, and that Jose and Laura made11 sure he and his clothes were clean. The soci al worker noted that she had visited Jose’s home and found it clean and comfortable. The August 13 hearing was c ontinued to August 20 and ag ain to October 29, 2012. Prior to the October 29 hearing, the Bure au submitted a status report recommending that J.P. be placed with his fath er with a family maintenanc e plan and that Orlando be released as J.P.’s edu cational representative. The Bureau advised that J.P. was doing we ll in his foster home and that his basic needs were being met. He was receiving sp ecial education services and twice-weekly tutoring, and his process in school was satisfa ctory. He was only taking Benadryl, his foster mother having stopped the psychotr opic 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 eas ily distracted and had problems staying focused. He continued to participate in psychiatric services that included medication monitoring and individual therapy. The Bu reau quoted J.P.’s ther apist 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 ho w much she influences what he is thinking and feeling, particularly in regard to his rela tionship with his biological father. J.P. has made great progress under her care and sh e 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 complianc e with his case plan, consistently testing negative for drugs, and Jose and Laura had completed a pa renting 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 vis it, 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.12 The Bureau concluded with this assessmen t: “[J.P.] has done well in his current placement. His extended visits with his fath er have gone well. The father and his wife made the effort to take [J.P.] to his sport ac tivities and ensured he kept his appointments. [J.P.] indicated to this worker that he had a nice time with hi s family and he did appear to be comfortable in their presence. [¶] [Jose] re mained consistent with his interactions with [J.P.] He completed all that the Bureau and th e 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 perman ently.” With that, the Bureau recommended that J.P. be pl aced 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 caregiv er 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 week end when he has to go with his dad. Says he will run away, he cries, yells.” An attachment desc ribed 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 hi m 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 hi s 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 ha lf siblings often spoke deroga tively about his foster mother; J.P. told his foster mother that his father he ld cockfights in the ba ckyard; 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 co ncerns about Jose’s ey esight and the safety of him driving J.P. in a car; J.P had a nigh tmare about Laura putting her hands around his neck; J.P. cried because his young half brothe r 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 lic k him on the face.13 Also attached to the careg iver 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 sh ared 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 livin g 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, co unsel 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 c ourse of three days, February 13, March 14, and April 11, 2013. J.P. was the first to testify. He expresse d 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, “chi cken 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 fath er’s house because the kitchen and bathroom were infested with cockroache s. According to J.P., Jose never requires him to shower and, in fact, sometimes prevents him from doi ng so. If he had his choice, J.P. would live with Orlando. J.P. acknowledged that he ha d been visiting his father fr equently lately, including regular Saturday and Sunday vi sits and overnights. When as ked 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, we nt to the park, and walked the dog.14 J.P. also testified that even though his fa ther’s house has four bedrooms, he shared a bed with his 14-year-old half sister. 7 His two younger half si blings 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 te lling 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. de scribed 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 possessi on of drugs for sale, Jose claimed that he had been living with people who were sel ling drugs but he got blamed for it. He spoke up about it, and the police later found out who rea lly 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 comp leted two parenting cl asses in which they learned how to talk to and educate children. He had also been participating in random drug testing pursuant to whic h he submitted to tests every w eek or two, a ll of which had come back negative. Jose denied that he had ever hit J.P ., claiming that when ever 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 h earing 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.15 head. Another time, J.P. hit another child hard with a ball. Jose never told the social worker about either incident . Jose also denied knowi ng what “the B word” is. Jose affirmed that he and La ura both wanted J.P. to co me live with him. He was paying $25 in child s upport each week, and he understo od 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 aske d why he did not sleep in his own room, Jose explained that he previously had the two spar e bedrooms rented out, and he was looking for new tenants. When asked about the cockro aches, 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,” whic h 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 lear ning 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 aw are of Jose’s one positive drug test, as a result of which he attended an outpatient subs tance 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 pos sible cognitive deficits that affected his ability to benefit from therapy. She also acknow ledged that, according to the therapist, Jose exhibited a lack of prior ity 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 wh at they were. He did, however, describe behaviors in J.P. that were consistent with his diagnoses.16 Crespo had not heard about the knife incident prior to that day. Jose had told her, however, that J.P. was acting out toward s his siblings and was hitting them. Crespo estimated that she ha d visited Jose’s home five times in 2012. Whenever J.P. was there for an extended visit—typica lly, seven consecutive days—she had made a point of visiting when Jose was going to be th ere 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 obse rved the presence of cockroaches, she had no concerns about the general cleanliness of Jose’s house. When she di d the initial home assessment, Jose showed her the bedroom wh ere the children slept, and ther e 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, th e family had one dog an d some chickens. During later visits, the chickens were gone and they had more do gs, although none appeared vicious. When she did the initial asse ssment, Crespo interviewed a ll adults who lived in the home, including one of Jose’s tenants. Sh e was going to do a b ackground check on the tenant, but he passed away before it was co mpleted. Crespo did not believe that her initial home assessment reported to the court th at 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 un derstanding 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 full y understand J.P.’s emotional issues. The Bureau’s recommendation that J.P. be turned ove r to Jose’s care with a plan for family preservation services would incl ude months of family therapy in the home to help the whole family adjust to th e new living arrangement. When asked if the foster mother unders tood J.P.’s educational needs, Crespo responded that she and the foster mother ha d different opinions about J.P.’s academic needs. The foster mother (a s well as J.P.’s brother Orla ndo) wanted him to be in a smaller educational setting, while Crespo belie ved J.P. was doing well where he was. It17 was not, in her opinion, a matter of changing the school environment as much as it was finding a way for him to retain th e information he was learning. When asked if she had an op inion 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 bot tom 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 hi m the opportunity to be the pare nt 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 tes tify. She and Jose ha d been together for 16 years, although they never married. They had three child ren together, who were four, seven, and 15 years old at the time of the he aring. 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 wh en she was home with J.P. and she found him difficult to direct, particularly on the firs t day of a visit. After the first day, he typically behaved better. She described a re cent 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 ha s 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 differen ce. 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 we ek to help integrate J.P. in to the family. Testimony then concluded for the day.18 When testimony resumed nearly a month la ter, Crespo was recalled to the stand. Since the previous court session, Crespo and co unsel 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-lon g visit was scheduled to corre spond 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 ende d up being reduced to a single overnight visit. Counsel for J.P. examined Cr espo about a visit report prepared at the request of J.P.’s counsel. In the report, an investig ator stated that she found the living room furnished but dirty; the kitche n in complete disarray, with food, unwashed dishes, and cooking utensils piled on every available su rface; bedrooms filthy with little furniture and piles of clothes, toys, and pers onal items strewn about a bath room 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 cons idered 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 th at she did not see a negative impact other than that he did not want to be there. Sh e 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 th en questioned Crespo on the portion of the report describing the condition of the house. Acco rding 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 beca use he does not let his children walk19 off with strangers. He did let the woman in the house, explaining to her that the home had just been fumigated, which was why belo ngings were moved ar ound and piled on top of each other. Counsel then asked Crespo about the minimu m 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; ther e 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 fo ster mother was relu ctant to allow J.P. to reunify with Jose. Crespo explained that when that is the cas e, 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 sh e was unable to move J.P. Lydia was the final witness to testify. Sh e 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. Sin ce that point, he had been prescribed approximately five different psychotropic medications, all of wh ich Lydia tried but ultimately stopped becaus e of his reaction to them. At the time of the hearing, J.P. was only taking Benadryl to help him sleep, Albuterol for asth ma, 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 ha d 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 to ld 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, a nd nobody cooked for him.20 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 give n enough food to eat. Concerning hygiene matters, Lydia descri bed 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 co ckfight he witnessed at his father’s house. Lydia also testified th at J.P. told her about being attacked by a pit bull outside his father’s house, a lthough when J.P. testified, he did not recall the incident. Jose was recalled to the stand to answer qu estions about the inve stigator visit that had occurred since his original testimony. A ccording to Jose, the investigator arrived unannounced on a Saturd ay when Jose was home alone with J.P. and his younger half brother. Jose testified that the night before the visit, th e 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 followe d the Bureau’s recommendation. He would lose the security he had in Lydia’s home, a nd 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 lo nger have to pay for his foster care. Counsel for Jose argued that while there wa s 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 reuni fication, 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 be ing 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 conclu ded with this: “[T]he father has done everything he’s been required to do under the [family reunifica tion] plan. He deserves a21 chance, an opportun ity, 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 d oubt, will be removed and probably put back with [Lydia]. [¶] But this is really jumping the gun be cause 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 fo rget reunification even if the parent has done everything he can to reunify,’ I thi nk that should not be condoned.” Counsel for the Bureau argued last, contendi ng 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 retu rn the child to the custody of the parent unless it determined by a pr eponderance of the ev idence that the return of the child would create a substantial risk of detrimen t to the child’s physical or emotional well being. . . . The standard for showing detriment is fa irly high one. It cannot mean merely that the parent in ques tion is less than ideal, did not benefit from reunification services as mentioned . . ., seem s less capable than any available foster parent or other family member. Rather, the ri sk of detriment must be substantial such as returning a child to parental custody repres ents 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 add itional support in place, as he has access to his brothers and a mentor with whom he had an on going relationship. Following argument, the cour t terminated reunification se rvices to Jose, offering the following rationale:22 “I think there has been a showing by more than preponderance of the evidence that return—not even return—to pl ace J.P. with the father atthis time would create a substantial risk of detriment to his emotional well being. “I have gone back—I have reviewed th e 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 di dn’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 wh en 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] wa s not much part of that child hood. 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 wa s a little bit surprised, bu t in March of 2012, it was actually recommend[ed] that services to dad be terminated. And Commissioner Houghton overruled th at and ordered no [ sic ] more services. And th en you come back in October and now it’s the recommendation that [J.P.] be removed fr om the caretaker and placed with father, for the first time in hi s 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 wh y he possibly could ha ve 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 do n’t even speak the same langua ge is just—given this big picture before this Court, I’m not sure wh y [Lydia] has become th e villain in this.23 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 stat ements. 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 pos itive relationship at some point between [J.P.] and his father, but the Court does not be lieve there is one now such that the court would be willing to pla ce [J.P.] for the first time in his life with a dad given the issues that [J.P.] presents. And this is not about wh o’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 emotiona l well being of this little person in the courtroom.” With that, the court set the matter for a se ction 366.26 hearing on August 8, 2013. On April 17, Jose filed a tim ely 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 th at at periodic review hearings, “the court shall order the return of the child to the physical cust ody of his or her parent or legal guardian unless the court finds, by a prepond erance of the eviden ce, that the return of the child to his or her parent or lega l 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 cons ider 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 cour t here found that placing J.P. in Jose’s care would create a substantial ri sk of detriment to his emotional well-being. We review24 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 b een 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 allerg ies, and Benadryl to help him sleep at night. More significantly perhaps, J.P. had tried multip le psychotropic medica tions to treat his psychiatric disorders, but had experienced negativ e side effects. It was expected that he would be trying another psyc hotropic medication in the n ear future. Despite these significant health concerns, Jose could not id entify 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 fo rms of therapy to help him cope with his numerous issues. Despite this, family therapy had be en terminated because Jose was uncommitted to the process and failed to make it a prior ity, evidencing a lack understanding of, and commitment to, J.P.’s emotional needs. Indeed, Crespo testif ied that, in her opinion, Jose did not fully understand J.P.’s emotional issues. As to J.P.’s educational needs, he ha d 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 wa s mutual, there were two recent incidents in which J.P. acted aggressively towards the two younger ha lf siblings. Due to these, and possibly other, incidents, Laura testified that she wa s concerned about J.P. living in the home she shared with Jose and their children.25 And, lastly, and most certainly not insi gnificantly, J.P. expressed fear at the prospect of living in his father’s home. A lthough he testified he did not remember a choking incident, there was evid ence 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 ma de him uncomfortable, su ch as the excessive swearing, the cockroach infestat ion, the sleeping arrangements , and the lack of sufficient food. All told, this evidence por trayed a child who had significant psychiatric, emotional, and academic challenges. In th e two and half years since removal from his mother’s care, J.P. had made notable progre ss in many of these area s. 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 repres ented and the Bureau’s counsel argued at the hearing, that he did all the Bureau an d the court asked of him. But the decision whether to return a dependent child to the custody of a pa rent—or, as here, to place a child with a noncustodial parent—is not g overned 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.Ap p.4th 890, 893, Joseph was detained because his parents were ph ysically abusing him. By the time of the 18-month status review, the parents had comp leted 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 sca rred by the abuse and was traumatized by the prospect of being returned to his parents’ custody, retu rning him posed a grave risk of detriment to his emotional well-being such that return to parental custody was improper. As the Court26 of Appeal put it, “If returning the child will create a substantia l 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 requir ed 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 determin ative factor. The court was still tasked with determining the effect of the placement on J.P.’s well-bei ng, and as we have he ld above, there was substantial evidence supporting the court’s de termination 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 thos e 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 caref ully consider Jose’s conduct. DISPOSITION The petition of father Jose G. for extraordinary writ relie f is denied on its merits. (Cal. Rules of Court, rule 8.452(h)(1).) This de cision is final as to this court forthwith. ( Id. , rule 8.490(b)(1).)

_____________ ____________ Richman, J.

I concur:

_________________________ Haerle .J.1 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. Ac cordingly, I respectfully dissent. Because “ ‘[t]he relationship of a natura l parent and a child is a vital human relationship which has far-reachi ng implications for the grow th and development of the child’ ” ( In re Andrew L. (2004) 122 Cal.App.4th 178, 195 ), dependency law is designed to protect it from stat e interference absent a compelling n eed to do so. As many courts have explained, “[t]he dependency scheme is based on the law’s strong preference for maintaining family relationshi ps whenever possible. [Cita tions.] 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 presump tion that a dependent child will be returned to parent al custody. [Citation.]” ( In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) Where as here, the trial court rejects th e 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 phys ical 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, wh ile 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 fro m the reunification services as much as we might have hoped, or seems less capable than an availabl e 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 nonoffe nding and loving father who has reached out to protect his son from dangers created by the mother and done all that has been asked of2 him. Is he perfect? Certainl y not, but neither are most pare nts, 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 fa cts seem to me unjustified by the whole record; particularly the court’s statement th at there is not now a “positive relationship” between Jose and his son, whic h I think a gross distortion of the parent-child relationship
reflected in the record. The co urt’s statement that Jose and his son “don’t even speak the same language” significantly ov erstates 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 c onsidered, the entire re cord simply does not
establish the “substantial risk” needed to support the trial court’s ruling. I am also troubled by the trial court’s st atement that “there is no evidence before this Court that [the fost er mother] has done anythi ng to sabotage any of these relationships, period.” That observation seems to me utterly blind to the record. I cannot confidently say the foster moth er has in fact “sabotaged” the relationship between Jose and his son, but the record provides (and the majority op inion describes) more than enough evidence to warra nt that inference. While I dissent, I join the ma jority in hoping that, at the next stage, when the court selects a permanent plan pursuant to Welfar e 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 va lue the law places on the relationship of a natural parent and a child, and that it is not th e judicial role to compare the resources or quality of care a parent can provide against thos e that can be provided by a foster parent desirous of adopting the child.3 For the foregoing reasons, I wo uld reverse the judgment.

_____________ ____________ Kline, P.J.