O.H. v. Super. Ct. CA1/2 filed

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Filed 3/3/11 O.H. v. Super. Ct. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 O.G.H., Petitioner, v. A130216 SUPERIOR COURT OF SAN MATEO COUNTY, (San Mateo County Super. Ct. No. 79045) Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, et al., Real Party in Interest. I. INTRODUCTION O.G.H., the presumed father of F.V. and E.H., seeks review by extraordinary writ of a juvenile court order setting a hearing pursuant to Welfare and Institutions Code section 366.26.1 O.G.H. contends that his due process rights have been violated, that the lower court order is not supported by substantial evidence and that the juvenile court abused its discretion. We reject these contentions and affirm the juvenile court order. II. STATEMENT OF FACTS O.G.H. has a lengthy child welfare history; his five children have been the subject of at least 22 referrals, and his oldest son, who is now an adult, was a court dependent for 1 All further statutory references are to the Welfare and Institutions Code unless otherwise noted. 1 most of his life. This case pertains to the welfare of O.G.H. s two youngest children, four-year-old F.V., and E.H., who is three. O.G.H. has been married to these children s mother since December 2005. O.G.H. is not F.V. s biological father but he may be the biological father of E.H. In any event, the juvenile court has expressly found that O.G.H. is the presumed father of both children. A. Background A brief summary of the cases involving O.G.H. s older children establishes an important context for our review of the present order. Unfortunately, it appears the juvenile court was not properly apprised of this history until very late in the current proceedings. O.G.H. is the father of three teenage sons, N.H. who is 19, and 16-year-old twins, A.H. and O.H. The first petition involving this family was filed by the Alameda County Social Services Agency in January 1992, when N.H. was less than one year old. That case was terminated in August 1993. Then, in December 1996, a section 300, subdivision (b) (section 300(b)) petition was filed on behalf of all three boys after they were abandoned by their mother and their father could not be found. O.G.H. was located in April 1997 and participated in reunification services. The case was transferred to San Mateo County and all three boys were placed with O.G.H. in February 1998.2 In March 1998, the San Mateo County Social Services Agency (the Agency) filed a supplemental petition pursuant to section 387 on behalf of the boys, based on allegations that O.G.H. physically and sexually abused N.H., who was seven at the time. The Agency alleged that N.H. came to school tired, hungry and with poor hygiene and that O.G.H. was not responsive to the school s concerns. One day the boy had a red mark on his back and another day he had a black eye. Furthermore, N.H. reported that his father had touched his private parts in the bathroom and that it made him feel bad. N.H. was detained and remained in an out of home placement. However, the twin boys were released to O.G.H. at the detention hearing, apparently because the court found 2 The boys mother died of a drug overdose in 1999. 2 that the petition allegations did not directly pertain to them. Nevertheless, the twins were declared court dependents and O.G.H. received family maintenance services for them until their case was closed in May 2000. Meanwhile, the sexual abuse allegation pertaining to N.H. was ultimately sustained based in part on the results of psychological evaluations of both N.H. and O.G.H. The doctor who evaluated N.H. reported that the likelihood of inappropriate sexual fondling by the father is high and was clearly distressing to [N.H.]. 3 The doctor who evaluated O.G.H. reported that O.G.H. s lack of judgment in violating the boundaries of his son, as well as his lack of appropriate remorse are red flag issues that warrant scrutiny, and recommended that O.G.H. obtain therapy to address his sexually inappropriate behavior, anger, impulse control, and his poor self image. O.G.H. received reunification services but his relationship with N.H. failed to improve. N.H. reported that O.G.H. repeatedly hit and shook him during overnight visits and he begged to leave his father s home. In January 2000, the court terminated services and N.H. was ordered into long-term foster care. B. The May 2007 Petition (FV) On May 7, 2007, the Agency filed a section 300(b) petition on behalf of F.V., who was a year old at the time. F.V. was detained after her pregnant mother, M.V., was arrested for public intoxication outside the hotel where they lived. The petition alleged that M.V. has a history of depression and mental illness and that she failed to follow medical treatment for her condition. At that time, the identity of F.V. s father was unknown. According to the Agency s detention report, M.V. acknowledged that she made a mistake on May 7 by failing to take her medication, failing to eat, and then drinking with her live-in boyfriend, O.G.H. M.V. further reported that she did not want F.V. to be left 3 N.H. reported that O.G.H. played around with his private parts, that he touched N.H. while he was in the bath with his hand and his foot, and that he pulled on N.H. s penis. The child said that O.G.H. was not cleaning him, but was playing with his private parts, and that it made him feel bad. 3 with O.G.H., who is not F.V. s father and whose own children had been taken from his care because he allegedly molested one of them. After F.V. was detained and placed in foster care, the Agency learned that O.G.H. and M.V. are married and that, although O.G.H. is not FV s biological father, he cared for her as if she was his own. The three lived together, along with O.G.H. s twin sons, A.H. and O.H. During a follow-up interview with the Agency social worker, M.V. revised her opinion of O.G.H., explaining that she had been angry with him on the day she was arrested because he had refused to buy her a drink and that was why she said she did not want F.V. to stay with him. She told the social worker that she knew that F.V. would be safe with O.G.H. Prior to the jurisdiction hearing, the Agency reported that M.V. and O.G.H. both have criminal histories. M.V. has been arrested and cited or incarcerated for vandalism, burglary and assault. The May 7 incident led to her incarceration for a parole violation which was expected to last until November 2007. O.G.H. had been arrested or detained and cited or incarcerated for kidnapping for ransom, illegal entry, drug possession, falsely identifying himself to a peace officer, petty theft and spousal abuse. The Agency also reported that O.G.H. s oldest child, N.H., had been removed from his care as a result of sexual abuse. A jurisdiction hearing was conducted in June and July 2007. The juvenile court found that O.G.H. is F.V. s presumed father, and both parents submitted to jurisdiction, based on allegations in an amended petition. The matter was continued for disposition. O.G.H. wanted F.V. returned to his care but he advised the Agency that he could not afford rent at his current residence and would soon be homeless. He stated that he needed time to stabilize his situation and asked that, in the meantime, F.V. be placed in the home of his sister, Edith P. Prior to disposition, the Agency filed supplemental information about the 1998 sexual abuse allegation involving N.H. The Agency advised the court that there were allegations of both physical and sexual abuse and it outlined the procedural history of N.H. s case. However, it also advised that O.G.H. was never charged as a criminal sex 4 offender, that the Agency was unable to locate any documentation that the sex abuse allegation was sustained, and that the social worker who handled N.H. s case stated that the sexual abuse allegation was not sustained. The Agency also reported that the social worker assigned to F.V. s case had questioned O.G.H. and his sister Edith P. about the 1998 incident and both were adamant that O.G.H. did not sexually abuse N.H. Edith P. reported that she had provided childcare for N.H. at the time and that N.H. suffered from infections of the penis due to poor hygiene. She took him to the doctor who prescribed a cream, but the infections persisted. So, O.G.H. took matters into his own hands and cleaned the area and applied the cream himself. Edith P. also reported that she currently had weekend visits with N.H., that O.G.H. participated in those visits and that O.G.H. and N.H. had a good relationship. In July 2007, O.G.H. submitted to a psychological evaluation. The doctor found that it appeared that O.G.H. was at low risk to reoffend, that there was no evidence of a mental illness which would prevent him from utilizing and benefiting from services, and that he appeared to perceive the risk to F.V. and to understand his role as a parent. The disposition hearing was conducted on August 23, 2007. The dependency was continued, both parents were granted reunification services, and O.G.H. was granted visitation. The court gave the Agency discretion to place F.V. with O.G.H. once he obtained housing. An interim review was conducted on November 15, 2007, to assess the family s progress and compliance with their case plan. F.V. was living with O.G.H. s sister, Edith P. M.V. had been released from jail and had given birth to a baby boy, E.H. In early November, the family was evicted from a homeless shelter because of M.V. s erratic behavior, but they secured housing in a converted garage. O.G.H. was working as a day laborer. Both parents had been dropped from their parenting class for failure to attend. A six-month review hearing was held on January 22, 2008. By that time, the Agency had already received two referrals regarding E.H., although both were closed without action. O.G.H. had enrolled in a second parenting class, but produced two 5 positive drug tests (marijuana) and one diluted specimen. He also missed 4 of his 11 scheduled visits with F.V. The Agency recommended that dependency continue and that both parents receive additional services. O.G.H. contested the continued out of home placement and the matter was continued. The contested hearing was conducted on March 26, 2008. Since the prior hearing, M.V. produced negative drug tests but failed to test once in January and twice in February and she was not participating in treatment. O.G.H. was participating in his parenting class and produced negative drug tests, although he missed one test at the end of January and two in the beginning of February. The family was looking for a larger place to live. At the conclusion of the hearing, the court adopted the Agency recommendation and continued the out of home placement, with six more months of reunification services. The court authorized unsupervised weekend visits for F.V. on the condition that M.V. accept mental health services and that the family submit to unannounced Agency visits. The 12-month review hearing was held on June 26, 2008. During that reporting period, both parents participated in services and produced clean drug tests. Unsupervised weekend visits commenced in April. Unannounced visits from the Agency did not raise significant concerns. The Agency recommended that F.V. be returned to her parents with family maintenance services and the court adopted that recommendation. Family maintenance services included drug testing and unannounced visits. C. Family Maintenance Period (June 2008-December 2008) A six-month status review was scheduled for December 16, 2008. By that time, the Agency had received two referrals alleging physical abuse and general neglect of F.V. The Agency could not substantiate the physical abuse claim but confirmed that F.V. was unkempt and hungry. The family s housing was unstable; they had moved three times since the last hearing and planned to move again. The Agency was also concerned that the family was not participating in services. F.V. had been enrolled in a developmental play group and speech class to address receptive and expressive language delays. However, she was dropped from the speech class for failure to attend, and she displayed 6 negative behavior at playgroup. Notwithstanding that the Agency paid Edith P. to provide daycare for both F.V. and E.H., M.V. failed to regularly attend mental health counseling and parenting classes and did not utilize Agency referrals for additional support services. O.G.H. completed his parenting class and produced negative drug tests, although he submitted another diluted specimen. D. The December 2008 Petitions (F.V. and E.H.) On December 15, 2008, the Agency filed a section 387 supplemental petition on behalf of F.V. and a section 300(b) petition on behalf of E.H. Both petitions were supported by allegations relating to an incident that occurred on December 8. That day, the Agency was notified that O.G.H. had appeared at F.V. s developmental play group smelling of alcohol and that a similar event had occurred in November. Both times, O.G.H. denied that he had been drinking, appeared to be lucid and was permitted to stay. However, in light of this report, the social worker went to the home of O.G.H. s sister, Edith P., and waited there for O.G.H. and F.V. to return from the play group. In the meantime, M.V. showed up at the house, visibly intoxicated and behaving irrationally. On December 17, the children were removed from their parents home and placed with Edith P. A jurisdiction/disposition hearing was scheduled for January 16, 2009. The Agency reported that O.G.H. maintained that he was not intoxicated on December 8 and that M.V. also denied that she drank alcohol, but admitted that she drank Kava because she did not think it was a big deal. Nevertheless, M.V. agreed to enter a residential treatment program if it would facilitate returning the children to O.G.H. s care. On January 13, M.V. enrolled in residential treatment. The Agency recommended that the court terminate reunification services in F.V. s case and bypass services in E.H. s case. The new goal of the children s case plan was joint adoption. The Agency opined that neither parent was likely to make substantial progress if given additional services. Since F.V. was returned to their care in June 2008, both had failed to engage in court ordered services, and supervision of the children had been an ongoing Agency concern. O.G.H. had consistently failed to take responsibility for or protect the children, downplayed M.V. s problems and accused the Agency of 7 overreacting. Further, O.G.H. s 15-year-old twins, were failing school and living with friends instead of their father. O.G.H. opposed the Agency recommendation and the matter was continued. In the meantime, M.V. withdrew from her residential treatment program after only three days, claiming she was upset that the court had not returned the children to O.G.H. Moises Guerrero, a drug and alcohol assessor employed by the Agency, met with M.V. and O.G.H. and then recommended that M.V. participate in long term residential treatment. Guerrero also advised the social worker that O.G.H. had admitted that he was aware that M.V. was drinking again and that he even facilitated it because M.V. would pester him for money and become violent if he did not give it to her. On January 30, 2009, the juvenile court exercised jurisdiction over F.V. and E.H., and continued the matter to February 19 for disposition. Prior to disposition, the Agency changed its position and recommended that the children be returned to O.G.H. O.G.H. had obtained new housing a room which would accommodate him, the two children and his twin boys. He also obtained a restraining order requiring M.V. to stay away from the family until the date of the disposition hearing. Meanwhile, M.V. had enrolled in a six-month residential treatment program on February 2. F.V. resumed speech services on February 10 and continued to attend her developmental playgroup. In light of these changes, the Agency recommended that the dependency continue but that the children be returned to O.G.H. with additional family maintenance services. It also recommended that the court terminate services to M.V. At a February 19, 2009, disposition hearing, the court found that O.G.H. is the presumed father of E.H. It continued the dependencies but returned both children to the custody of O.G.H., based on a finding that he had made adequate progress toward alleviating the problems that led to the dependencies. The court terminated services to M.V. and verbally ordered her to stay away from the home. The court also issued a three-year permanent restraining order which required M.V. to stay away from O.G.H. s residence. 8 E. Family Maintenance Period (February 2009-September 2009) The Agency received a referral regarding an incident on April 30, 2009. It was alleged that O.G.H. arrived home intoxicated and found his 16-year-old son, A.H., in bed with F.V. It was further alleged that F.V. was naked from the waist down, and that O.G.H. accused A.H. of molesting F.V. O.G.H. s other son, O.H., came to his twin brother s defense, a struggle ensued and O.G.H. physically abused O.H. When questioned about the April 30 incident, O.G.H. denied the allegations and reported that he did not have any concerns about leaving his younger children alone with the older boys. O.G.H. reported that he had a normal relationship with his twins and that he financially supported them both. A.H. lived with him and attended high school. O.H., who O.G.H. described as rebellious, chose to live with his pregnant girlfriend and her family and did not attend school. The social worker attempted to interview A.H. about the incident but was unable to make contact. F.V. was examined by a doctor who found no physical evidence of sexual abuse. Therefore the sexual abuse referral was closed as inconclusive, while the report that O.G.H. assaulted O.H. was referred to another case worker. A review hearing was held on May 19, 2009. The Agency acknowledged there were several concerns about O.G.H. s parenting abilities, but recommended that the children remain in his care and services continue. The matter was continued so the Agency could provide additional information about N.H. s dependency case. 4 On May 20, 2009, M.V. walked off her residential treatment program, stating that she could not handle it anymore. The Agency did not know how to contact her and O.G.H. reported that he had not heard from her. In light of this development, the social worker confirmed that O.G.H. understood that M.V. was not allowed in his home. 4 Although a transcript of this hearing is not included in the appellate record, Agency reports reflect that the juvenile court questioned whether it had been adequately informed about O.G.H. s prior child welfare history with respect to his three oldest children and opined that it might not have returned F.V. and E.H. to O.G.H. in February 2009 had it been properly advised about the sexual abuse allegation pertaining to N.H. 9 On May 27, 2009, the Agency filed an Addendum report which contained a comprehensive summary of N.H. s dependency case. As best we can determine, this report contains the first unequivocal acknowledgement from the Agency that the allegation that O.G.H. sexually abused N.H. was sustained. The Agency expressed concern about O.G.H. s lengthy history with social services and current problems with his twin sons but also maintained that it appeared O.G.H. was meeting the needs of the two younger children. Therefore, the Agency recommended that the dependencies continue and additional services be provided. In August 2009, the Agency reported that both A.H. and O.H. refused to live with O.G.H. because they claimed he neglected and physically abused them. O.G.H. was unemployed but did odd jobs and supported the children with general assistance and food stamps. The family was living in East Palo Alto, in a single bedroom in a large house shared with several other families. O.G.H. wanted the children to remain in his care or, if that was not possible, to be placed with a sister who lived in San Jose. The Agency remained convinced that F.V. and E.H. were not in any immediate physical danger and that O.G.H. was meeting their basic needs. On September 5, 2009, the Agency made an unannounced visit to O.G.H. s home. O.G.H. and the children were not there, but the social worker saw M.V. through the bedroom window. She was on the floor, appeared to be sleeping and did not respond to knocking. O.G.H. was contacted by phone and did not sound surprised to hear that M.V. was at his home. He explained that she had been coming around since early September and that he had had to call the police to have her removed. The six-month status review was held on September 24, 2009, and the Agency recommendation was to continue the dependencies and provide O.G.H. more services. Again, though, Agency reports documented several ongoing concerns. At the hearing, the juvenile court ordered the Agency to file section 387 petitions on behalf of both F.V. and E.H. and to remove them from O.G.H. s home. The children were again placed with Edith P. A transcript of the hearing is not available to us, but subsequent Agency reports contain summaries of testimony by two social workers who testified at the hearing, Aaron 10 Lechuga, who investigated the referral that O.G.H. was drunk and assaulted O.H., and Emilia Jones, who was assigned to the younger children s case. Lechuga testified that O.G.H. was not meeting the basic needs of A.H. and O.H. Because the twins refused to live with their father, Lechuga had assisted O.G.H. in preparing a contract with their caregiver, the mother of O.H. s girlfriend. The contract required O.G.H. to pay $450 per month for boys care, but he had failed to keep the agreement. Lechuga also testified he was informed by a member of the community that O.G.H. purchased beer while he was with the two younger children and that the children were dirty and smelly. The Agency had also received a separate referral on September 15 that the children s needs were not being met. Jones testified at the hearing that a member of the community had reported that M.V. was actually living with O.G.H. and the children. The referent reported that the children were suffering since their mother s return. Both O.G.H. and M.V. drank alcohol and fought in front of the children and O.G.H. yelled at the children and caused them distress. The referent asked to remain anonymous due to fear of retaliation. F. The September 2009 Supplemental Petitions (F.V. and E.H.) On September 28, 2009, the Agency filed supplemental petitions pursuant to section 387 on behalf of both F.V. and E.H., alleging that O.G.H. failed to comply with court orders by permitting M.V. into the home, that O.G.H. and M.V. had heated arguments in front the children, and that O.G.H. had a history of substance abuse and was ordered not to consume alcohol, but was seen purchasing and consuming alcohol. O.G.H. denied the petition allegations, maintained that he does not drink alcohol and claimed that he called the police when M.V. showed up uninvited. Nevertheless, the children were formally removed at the September 30, 2009, detention hearing. M.V. did not appear at that hearing because she had been arrested for violating the court s restraining order. The court directed the Agency to find a more reliable method of determining whether O.G.H. was consuming alcohol and ordered that M.V. was to have no contact with the children at all. 11 On October 27, 2009, the Agency filed a request to terminate all services to O.G.H. and schedule a section 366.26 hearing with respect to both F.V. and E.H. According to the Agency s jurisdiction/disposition report, an anonymous referent described numerous incidents during which O.G.H. and M.V. drank alcohol and engaged in physical fights in front of the children. According to this referent, M.V. came and went from the home for a while but moved in permanently in August 2009. O.G.H. called the police when things got out of hand, but always let M.V. return. When Agency workers came to the home, O.G.H. hid M.V. in a shed. Another person, who rented a room in the home where O.G.H. was living with the children, did not want to give her name. She confirmed, however, that M.V. was living in O.G.H. s room. She also recalled an incident when she heard F.V. crying in the bathroom at 1:00 a.m., and went to check on her, but turned back when O.G.H. emerged from his room completely naked and went into the bathroom with F.V. A contested jurisdiction/disposition hearing was held on November 4, 2009. A transcript of that hearing is not part of the record, but other evidence before us reflects that the juvenile court struck hearsay statements from witnesses who were too afraid to appear and testify at the hearing. Apparently the court also expressed significant concern about O.G.H. s unstable housing situation. The court s jurisdiction/disposition order is ambiguous at best. It made findings that the allegations in the section 387 petition were not proven and that the children were to be returned to O.G.H. However, the court also found that the welfare of the children required that the court assume custody of the children and that continuance in the home would be contrary to their welfare because it would create a substantial danger to the physical health, safety, protection or physical or emotional well being of the children. There was an additional handwritten statement on the order to the effect that O.G.H. voluntarily placed the children with Edith P. until his living situation stabilized and he returned to court. 12 G. Family Maintenance Period (November 2009-December 2009) Prior to a December 2009 review hearing, the Agency notified the court that it lost contact with M.V. again. O.G.H. told the social worker that he had heard that M.V. moved to Hawaii, but he did not help her buy a ticket and did not know where she was. However, Edith P. told the social worker that O.G.H. took a collection to send M.V. back to her island. In response to court concerns, the Agency social worker attempted to assess the quality of the random drug testing procedure that had been used in this case. The social worker learned that O.G.H. had been submitting to a test that only detected ethanol levels within the last twelve hours of alcohol consumption. The Agency then arranged for a more discriminating test of O.G.H. s samples that was designed to detect alcohol within 80 hours of consumption. Thereafter, several of the samples O.G.H. provided in November 2009 were positive for alcohol. Furthermore, analysts opined that the test results were indicative of frequent alcohol consumption during that period. When confronted with the test results, O.G.H. insisted that he had not consumed any alcohol for several years. Nevertheless, he was referred to Moises Guerrero, the Agency s Alcohol and Drug Services case manager, who knew him from past evaluations. Guerrero reported that O.G.H. was not honest about his history and problems with alcohol, and recommended intensive outpatient treatment. Meanwhile, Agency case worker Lechuga was investigating another referral regarding the welfare of A.H. and O.H., O.G.H. s twins. The boys caretaker reported that O.G.H. had paid her only half the money he promised and was now saying he would no longer give her any money. The woman, whose teenage daughter recently gave birth to A.H. s child, was having trouble paying rent and feared they would all be evicted. The boys did not go to school or have jobs. On December 3, 2009, the Agency received a report from Toni Garcia, a special investigator employed by the Agency who was assigned to investigate allegations that O.G.H. was committing welfare fraud. Garcia interviewed O.G.H. at his home on October 29, 2009. He was alone, disheveled, surrounded by beer bottles and obviously 13 under the influence of alcohol. Garcia concluded that O.G.H. was illegally collecting cash aid and food stamps for the twins because they did not live with him and neither attended school, both of which are requirements for receiving aid. H. The December 2009 Supplemental Petitions (F.V. and E.H.) On December 9, 2009, the Agency filed supplemental section 387 petitions on behalf of F.V. and E.H., which were amended in February 2010. The Agency sought a more restrictive placement than the voluntary placement with Edith P., based on the following allegations: (1) O.G.H. failed to comply with court orders to obtain stable housing and refrain from consuming alcohol; (2) O.G.H. s history of alcohol abuse, domestic violence, child neglect and child molestation prevented him from providing a safe home despite the fact that he had received 12 months of reunification services and 12 months of family maintenance services; (3) reunification services to M.V. were terminated, the court had made a no contact order against her and her current whereabouts was unknown. The children were formally detained on December 10, 2009. The court continued the order that they were to have no contact with their mother and granted O.G.H. supervised visits at the home of Edith P. In a report filed January 5, 2010, the Agency recommended that the court terminate services to O.G.H. In addition to O.G.H. s history of neglect, sexual abuse, and physical abuse, the Agency s immediate concerns pertained to recent alcohol abuse and lack of stable housing. Since November 4, 2009, O.G.H. produced five positive alcohol screens and two diluted specimens. He had moved 10 times in two years and six times in 2009 alone. O.G.H. continued to deny that he had consumed alcohol. When confronted with the positive alcohol screens, O.G.H. told the social worker that a co-worker had spiked his beverages with Red Bull and Monster so he would work faster. Similarly, during a drug and alcohol assessment, O.G.H. stated that a co-worker spiked his drink with an alcoholic beverage called Four Locos. Nevertheless, O.G.H. offered to participate in treatment and continued to seek a return of the children to his care. 14 On December 22, 2009, O.G.H. was admitted to a treatment program at Free at Last, after he told the counselor there, David Garcia, that he had consumed a couple of beers. Garcia told the Agency social worker that he had known O.G.H. for close to 20 years; Garcia was a recovering addict who used to smoke marijuana and drink with O.G.H. Garcia reported that O.G.H. had always been in denial about his drinking. In January and February 2010, O.G.H. produced negative alcohol screens while he voluntarily participated in treatment at Free at Last. O.G.H. reported that he enjoyed the program but refused to admit to the Agency that he needed treatment or that he had lapsed in November. Indeed, O.G.H. told the Agency social worker that his statement to David Garcia that he had consumed a few beers was a lie that he told so that he would be admitted into the program. O.G.H. also offered yet another explanation for his positive screens in November, this time claiming that he had been taking Nyquil because of a cold. O.G.H. continued to visit F.V. and E.H., although Edith P. reported that he only visited once a week because of his drug treatment classes. Edith P. also reported that if O.G.H. could not reunify with the children, the Agency needed to find a new placement for them because she could not care for them on a long term basis. O.G.H. s older boys continued to struggle during this period. N.H. had been emancipated from foster care in 2009 when he turned 18. He had a young child but was homeless until he was incarcerated for committing a robbery with his brother, A.H. A.H. was in juvenile hall and his probation officer was recommending an out of home placement because of O.G.H. s neglect. A.H. s twin brother, O.H., had a baby in November 2009 and refused to live with his father. When A.H. s probation officer told O.G.H. that the twins claimed he was an alcoholic, O.G.H. responded that all of his alcohol screens were negative. O.G.H. also told the probation officer that he was currently living with his 18-year-old girlfriend, Rachel V. Rachel V. is M.V. s sister. On March 16, 2010, a contested jurisdiction hearing was commenced before the Honorable Jonathan Karesh. After several days of testimony, Judge Karesh became unavailable, and the matter was continued until a new hearing could be conducted. 15 I. The July 2010 Second Amended Petitions (F.V. and E.H.) On July 15, 2010, the Agency filed second amended supplemental section 387 petitions on behalf of F.V. and E.H. The Agency alleged that the current orders were not effective in protecting the children, based on the following allegations: (1) O.G.H. failed to comply with prior court orders by producing at least five positive alcohol screens since November 4, 2009, and by failing to maintain stable housing for the past two years; (2) O.G.H. has a history of substance abuse, child neglect, child molestation and domestic violence which prevents him from providing a safe home in that he has received more than 24 months of services but continues to abuse alcohol and has failed to maintain stable housing for the children; (3) despite orders terminating services to M.V. and barring her from residing in the family home, M.V. and O.G.H. began living together in May 2009, and consumed alcohol and fought in front of the children until the children were removed in September 2009; (4) O.G.H. and M.V. continued to violate the restraining order until November 2009, when M.V. was three months pregnant with O.G.H. s child and O.G.H. sent M.V. to Hawaii in order to hide the pregnancy from the Agency. Evidence supporting the new allegations was summarized in a July 2010 addendum report. April 2010 telephone conversations with M.V: During an April 2010 telephone conversation with the social worker, M.V. reported that she was eight months pregnant with O.G.H. s child. She admitted that she had moved in with O.G.H. and the children on May 20, 2009, the day she walked out of her residential treatment program, that she continued to live with O.G.H. even after the children were removed from the home in September, and that she stayed with O.G.H. until November 2009, when he paid for her to go to Hawaii because he did not want the Agency to discover that she was pregnant. M.V. admitted that she and O.G.H. consumed alcohol daily and also engaged in domestic violence during the period they lived together with the children in violation of the juvenile court s restraining order. She reported that she did not want her children to live with O.G.H. because she believes he molested N.H. She also reported that O.G.H. was prostituting women when she first met him and that he was prostituting her when 16 F.V. was conceived. M.V. stated that, before she left for Hawaii, O.G.H. attempted to drug her sister Rachel so that he could have sex with her. Further, M.V. had learned from Rachel that O.G.H. was having a sexual relationship with a 15-year-old girl, but O.G.H. denied it. During a subsequent conversation, M.V. confirmed allegations by referents who had witnessed domestic violence between the couple. M.V. also admitted that she hid in a shed or in O.G.H. s truck when social workers came for visits. She said that O.G.H. agreed to get a restraining order against her as a way to get the Agency to trust him. She said that O.G.H. was physically violent toward her and that he became more violent when he drank. M.V. said that O.G.H. was able to produce negative alcohol screens because he knew to stop drinking at a certain time so his test would be negative the next day and he also tried to drink a lot of water. She also said that O.G.H. always bought her alcohol to shut me up, so she would not report his drinking to the Agency. M.V. told the social worker that she had long suspected that O.G.H. was molesting F.V., although she never saw him do it and hoped it was not true. He called F.V. names and pulled her hair but always paid the most attention to her and always tried to be near her. M.V. recalled an incident when she found F.V. in her crib, naked from the waist down even though M.V. had only recently put a fresh diaper on her. F.V. was crying hard and O.G.H. was taking a shower. M.V. said that O.G.H. was always locking himself and F.V. in the bedroom alone. She recalled that she often woke up to hear F.V. crying and O.G.H. was always there, next to F.V. M.V. said that during those incidents, she could not make herself become fully awake because of the medication she was taking. According to M.V., O.G.H. intentionally overdosed her with her bipolar medication so that she would be sleepy all the time. M.V. also told the social worker that O.G.H. had told her about the time he went home drunk and found A.H. in bed with F.V. O.G.H. was really angry about the incident and was convinced that A.H. would have had sex with F.V. if he had not come home when he did. M.V. reported that O.G.H. plays stupid games and does weird things. She recalled an incident when her 16-year-old sister spent the night with them while F.V. and 17 E.H. were living with Edith P. The next day, the girl was crying and told M.V. that O.G.H. tried to touch her private parts. She also said that O.G.H. had offered to pay her friends to kiss him.5 Investigator Toni Garcia s Report: On April 15, 2010, O.G.H. made a new application for cash aid for the care of O.H. County investigator Toni Garcia was reassigned to the matter. Garcia and her associate Juan Carlos San Mames interviewed O.G.H, who was accompanied by his sister-in-law Rachel V. Rachel appeared to be under the influence of a substance, but she denied it. Garcia reported that O.G.H. admitted that he had been intoxicated when she interviewed him at his home the previous September. O.G.H. told Garcia that both O.H. and Rachel were residing in his home; O.H. came back to live with him after a violent domestic dispute with his girlfriend, and Rachel was living with him because she was going through a difficult time. O.G.H. denied that he had a sexual relationship with Rachel. However, when Garcia s partner was alone with O.G.H., he made gestures to indicate that his relationship with Rachel was sexual. Furthermore, O.G.H. was wearing a wedding band and, when Garcia asked about it, O.G.H. said Rachel gave it to him and he did not want M.V. to know about it. Jane Doe: In December 2009, the Agency received a referral regarding 15-yearold Jane Doe, who went to the hospital reporting stomach pain and that she was pregnant. The girl also told hospital staff that her sexual partner was a 53-year-old man with the same first name as O.G.H., who was the brother-in-law of her best friend, Rachel. Jane Doe s probation officer told the social worker that Doe was not willing to identify her baby s father because she did not want him to go to jail. In June 2010, the social worker met Jane Doe while visiting another dependent child. The girl reported she was seven 5 The social worker documented her phone conversations with M.V. in the Agency s July 2010 addendum report. Before the report was filed, the social worker sent M.V. a letter which contained summaries of the conversations and then obtained verbal confirmation from M.V. that her allegations were documented accurately. 18 months pregnant by a 45-year-old man who had several other children and that she was unsure if the man was willing to help her. Edith P.: F.V. and E.H. continued to live with Edith P. who reported they were doing well in her care. Edith P. expressed a desire to keep the children but said her husband would not agree. Edith P. said that, out of all of her many siblings, O.G.H. had the most problems, but that she felt he was looking better and was now completely sober. She also reported that O.G.H. now usually confined his visits to the weekends and that M.V. called periodically. Recently, M.V. told Edith that she gave birth to a baby boy, that O.G.H. was the father, and that she had to give the child away because she could not take care of him. J. The August 2010 Third Amended Supplemental Petitions (M.V. and E.H.) On August 18, 2010, the Agency filed third amended supplemental section 387 petitions on behalf of F.V. and E.H. The petitions were amended to add an allegation that, during the prior year, O.G.H. had maintained an unfit and dangerous home. Facts alleged in support of the new allegation included: (1) O.G.H. engaged in sexual intercourse with a female minor in his home and permitted her to drink alcohol in his home and presence; (2) O.G.H. moved seven times in the past year, sometimes lived in his car, had lived in overcrowded conditions, and it was unclear who he allowed to live with him from day to day; (3) there was ongoing domestic violence in O.G.H. s homes, not just between him and his teenage sons, but also between the son and his girlfriend; and (4) O.G.H. was currently living with M.V. s sister Rachel, who was under 21 and who smoked marijuana and drank alcohol in O.G.H. s home. According to an August 2010 addendum report, Edith P. had agreed to keep the children in her care until the hearing was concluded and had indicated she would support the Agency in pursuing another placement for the children if the court did not return them to O.G.H. Edith s husband told the social worker that he loved the children but, at this stage in his life, he could not assume responsibility for raising them until they became adults. Mr. P. also said that he was tired of dealing with O.G.H. s problems, that he and his wife had cared for all of O.G.H. s children at one time or another and that he feels 19 that O.G.H. is not a fit parent. According to Mr. P., when O.G.H. visited, he spent most of his time visiting his sister. The Agency continued to receive referrals about the family. E. R., the maternal grandmother of O.H. s baby daughter, reported that her daughter Elizabeth had been arrested for assaulting O.H. and, after she was released, Elizabeth was arrested again for burglary. E. R. alleged that her daughter committed the robbery with O.H. but that O.H. had escaped and was in hiding. She described O.H. as violent and aggressive, and she said that she did not trust him or her daughter to care for the baby. In July, the Agency received a referral that O.H. beat up Elizabeth in front of their infant while at O.G.H. s home. The couple denied the allegation and the referral was closed. That same day, the Agency received a referral alleging that there was nightly mutual fighting between O.G.H. and O.H. According to the referent, the two fought about money and food and O.H. accused O.G.H. of giving all their food to his live-in girlfriend. The referent alleged that O.G.H. was prostituting his girlfriend in the home, that O.G.H. was drunk on a nightly basis, that the smell of marijuana emanated from O.G.H. s home and that O.H. beat up his girlfriend in front of their baby. The social worker interviewed O.G.H., O.H. and Elizabeth all together because O.H. refused to be interviewed without O.G.H. present. All three denied the allegations. In August, the social worker interviewed a neighbor of O.G.H. who was reluctant to talk about O.G.H. and the people living with him because they are not good people and she did not want any trouble. The woman did say that there was a lot of inappropriate activity in O.G.H. s home and that she does not feel safe because he lives next door. K. The Contested Jurisdiction Hearing The contested jurisdiction hearing was conducted before the Honorable Carl Holm on August 18, 19 and 27, and September 2, 2010. During the course of the proceeding, the court admitted substantial documentary evidence, including pleadings, transcripts, reports and orders from the present case as well as the court files for the dependency proceedings pertaining to O.G.H. s older boys. The court also heard testimony from 20 several witnesses, including Agency case worker Emilia Jones who was available for questioning regarding the issues addressed in the Agency s numerous reports. We will briefly summarize additional testimony and evidence because the writ petition challenges the sufficiency of the evidence to support the order which is the subject of our review. Drug and Alcohol treatment: The parties stipulated to the admission of evidence and expert testimony regarding O.G.H. s drug and alcohol tests which had been elicited during the March 2010 hearing. That evidence established, among other things, that O.G.H. had multiple positive alcohol screens and diluted specimens in November and December 2009. The parties also stipulated to admitting prior testimony from David Garcia, O.G.H. s drug and alcohol counselor at Free at Last. Garcia testified that O.G.H. came to the program of his own accord and reported that the children were removed because he drank one beer on two separate occasions in November and December 2009 which resulted in dirty tests. Garcia described O.G.H. s recent claim that he lied to Garcia during the in-take interview as taking a step back in his recovery. Garcia also testified that O.G.H. has indicated that he participated in treatment at Free at Last because the program made him feel good about himself, not because he believes he has a drinking problem. Moises Guerrero testified that he is employed by the County as a drug and alcohol services case manager. Guerrero first met O.G.H. in late 2007 when O.G.H. reported a 20-plus-year history of alcohol use, but was not forthcoming about problems associated with that use. Guerrero did not recommend formal treatment at that time, but he did recommend that, if O.G.H. was referred again and the same issues persisted, he would need to complete a formal treatment program. O.G.H. was referred to Guerrero again in December 2009, but he failed to attend his appointment. Jane Doe: The testimony of 16-year-old Jane Doe was given in court chambers, outside the presence of O.G.H. Jane Doe was 15 when she met O.G.H. in September 2009. Between September and December 2009, Jane Doe spent most of her time with Rachel V., who is O.G.H. s sister-in-law. Rachel was living with O.G.H. and introduced 21 him to Jane Doe. Jane Doe testified that the day she met O.G.H., she had smoked marijuana and drank alcohol with Rachel and then drank beer with O.G.H. and had sex with him. Jane Doe also testified that she had sexual intercourse with O.G.H. four times and that he could be the father of her child.6 According to Jane Doe, O.G.H. was always drinking during the period she spent time with him, except for one day when he had an appointment at his probation department. Jane Doe also testified that she saw M.V. at O.G.H. s house on at least two occasions between September and November 2009. Jane Doe saw M.V. sniff cocaine and witnessed arguments between M.V. and O.G.H. Fraud Investigation: Agency Investigator Toni Garcia testified that she was assigned to investigate an August 2009 allegation that O.G.H. was committing welfare fraud by collecting benefits on behalf of his four children. The conditions for receiving benefits were that each child was to be living with him, such that he maintained their care and control, and that the older children had to be attending school. Garcia testified that she visited O.G.H. at his residence on October 29, 2009. Based on her training and experience, Garcia believed that O.G.H. was under the influence of some substance. His eyes were red and he was having trouble standing. There were beer bottles in the room and O.G.H. was disheveled and smelled like alcohol. Garcia asked O.G.H. if his two older boys were living with him. Initially, O.G.H. stated that they were, but eventually admitted that the boys were not living with him. At Garcia s request, O.G.H. completed an affidavit regarding the residence of the four children. He wrote that the two younger children were not living with him but did not write anything about the older boys. As a result of her investigation, Garcia recommended that the County discontinue benefit payments to O.G.H. The matter was referred to the district attorney s office. Garcia testified that, in December 2009, O.G.H. reapplied for cash aid and food stamps for O.H. and Garcia was assigned to reinvestigate. She and her partner 6 Prior to disposition, the juvenile court was notified that a paternity test established that O.G.H. is not the father of Jane Doe s baby. 22 interviewed O.G.H. at her office on April 15, 2010. O.G.H. was accompanied by a young woman named Rachel who appeared to be under the influence of a substance, although she denied it. Rachel s eyes would close and then snap open, she was falling out of her chair, smelled of alcohol and was extremely nervous. Rachel stayed in the lobby while O.G.H. was interviewed in Garcia s office. According to Garcia, O.G.H. reported that he was living with Rachel and O.H., and that O.H. was now attending a trade school. Garcia asked O.G.H. if he had consumed alcohol on October 29, the day she interviewed him at his home, and O.G.H. admitted to her that he had been drinking alcohol that day. Garcia s partner, Juan Carlos San Mames, testified that he spoke with O.G.H. alone for a few minutes during the April 15 interview. According to Mames, when O.G.H. talked about what it was like to live with Rachel, he made perverse gestures with his tongue which gave Mames the impression that O.G.H. and Rachel had a sexual relationship. N.E.: N.E. testified that, in February 2009, O.G.H. began renting a room in the house where she lived, and that he stayed in the room with F.V. and E.H. for seven or eight months. During that time, N.E. saw O.G.H. drink beer on a regular basis. N.E. also saw O.G.H. and M.V. drink alcohol and fight in front the children. O.G.H. also fought with the twins in front of the younger children. N.E. testified that F.V. and E.H. would be shaking in fear because of what they saw going on in their home. N.E. testified that sometimes M.V. slept in O.G.H. s room and sometimes she slept in the dog house, and that she would hide in the doghouse when a social worker came to visit. N.E. also testified that she was afraid of O.G.H. because his family fought with her family. O.G.H.: O.G.H. s testimony from the March 2010 hearing was admitted pursuant to the parties stipulation. At that time O.G.H. testified that he could not remember the last time he voluntarily drank alcohol. He told the court that a co-worker named Eduardo had recently put alcohol in his energy drink because O.G.H. was sick at the time and Eduardo believed that the alcohol would help O.G.H. work better. O.G.H. discovered 23 that Eduardo had done this after he was advised about the positive alcohol screens he produced in November 2009. O.G.H. denied that there was ever a time in his life when he drank so much alcohol that it created a problem for him, but then admitted that he told David, his counselor at Free at Last, the he had an alcohol problem. O.G.H. testified that his admission to David about having a problem with alcohol was a lie that he told because he wanted to be admitted to the program. When asked whether he thought he needed the program, O.G.H. responded that he would do anything for his children and that he needed to show the court that he was complying with his program. O.G.H. testified there were many reasons he had to change residences so many times in the past two years: Sometimes he did not have money for rent; sometimes his children did not like the place; sometimes the place would not accept children; a few times, he had fixed his landlord s car which led to a dispute about the quality of his work; once, his children got in a fight with other tenants; once, the landlord became angry with him because he let his sister-in-law shower at his home. O.G.H. supplemented his testimony during the August 2010 hearing. He admitted that when F.V. and E.H. were returned to him in February 2009, he understood that M.V. was not allowed in his home. However, O.G.H. maintained that M.V. did not live with them during that time. O.G.H. testified that M.V. followed him home once and then showed up at the house nine or 10 times, and that he called the police when M.V. showed up and they made her leave. O.G.H. admitted that he had sex with M.V. one time during the period between February and October 2009, before MV went to Hawaii. O.G.H. also admitted that he gave M.V. money to go to Hawaii, explaining that he did not want to see her go back to jail. O.G.H. admitted that he knows Jane Doe. But he denied that he had sex with her and he claimed that he never saw her in his house. Edith P.: O.G.H. s sister testified that, during the entire period that F.V. and E.H. have been living with her, O.G.H. has visited on a daily basis and that he called on days he could not visit. She denied ever telling the social worker that O.G.H. only visited on 24 weekends. Edith P. testified that O.G.H. is involved in the children s life, plays and talks and eats meals with them, and that she has never seen him do anything to place the children at risk of danger. Edith P. also testified that she read an Agency report in which the social worker stated that she described her brother as the black sheep of the family, and that she never made that statement about him. She described O.G.H. as a loving brother, and a responsible person who cares about everyone. Under cross-examination, Edith P. admitted that O.G.H. did have an alcohol problem in the past. She testified that she did not know who paid for M.V. s ticket to Hawaii. She claimed that she never told the social worker that she or her husband were tired of dealing with O.G.H. s problems and that she never said the children had to leave her home. Indeed, Edith P. testified that she was willing to keep them with her as long as necessary but that she could not adopt them. Edith P. admitted that O.G.H. brought her to court that day and that the two of them talked about the case and her testimony. Agency social worker Emilia Jones testified on rebuttal that Agency reports regarding her conversations with Edith P. were accurate, and that she never had any problem communicating with or understanding Edith P. Jones testified that Edith P. did not use the words black sheep to describe O.G.H., but that she did report that O.G.H. was the only one of her siblings who had long standing problems. Jones also testified that Edith P. had expressed a desire to keep the children in her care but was also very clear that she could not do so because her husband would not agree. Jones spoke directly with Edith s husband, who confirmed that he was not willing to make a long term commitment to care for F.V. and E.H. L. The September 2010 Jurisdiction Order On September 2, 2010, the juvenile court signed findings and orders pertaining to the court s jurisdiction over F.V. and E.H. The court found, among other things, that (1) the allegations in the third amended supplemental section 387 petitions are true; and (2) the previous disposition has not been effective to protect the children. The court sustained the allegations in the petitions, and also ordered that O.G.H. was not to visit or 25 have phone contact with the children. The court also made an express finding that O.G.H. was not a credible witness. M. Disposition A disposition hearing was conducted on October 5 and 28, 2010. During that hearing, the court made the following remarks: I did not believe you when you testified. I believe you have an ongoing substance abuse problem that has been, as pointed out in the arguments, that[ s] 20 years standing. I believe you had sexual relations with Jane Doe. I believe you allowed the consumption of controlled substances, as well as alcohol, at your home. I believe that the children would not be well taken care of by you if they are returned to you. The court also made express findings that O.G.H. previously failed to reunify with N.H. and that he did not subsequently make reasonable efforts to treat the problems that led to that removal. The court concluded that O.G.H. would not be afforded additional services because [t]here s been enough. The children have been with us for years and they deserve better, by us and by you. On October 29, 2010, the court filed its findings and orders pertaining to disposition for the children. The court found that the welfare of the children required that the court assume custody, that allowing O.G.H. to retain custody would create a substantial danger to their physical health, safety or emotional well-being, and that they could not be safely placed with M.V. The court also found that reasonable efforts had been made to prevent or eliminate the need for removal, that reasonable services had been provided and that O.G.H. had made minimal progress toward alleviating the problems which led to the dependencies. The court also found that, pursuant to section 361.5, reunification services need not be provided to O.G.H. The disposition order also contains an express finding terminating visitation between O.G.H. and the children on the ground that further contact would be detrimental to the well-being of the children. The court ordered that the children and O.G.H. were to have a supervised closure visit and that the children were to be moved to a fost-adopt home as soon as possible. 26 A section 366.26 hearing was set for January 18, 2011. That hearing was stayed by this court after O.G.H. filed the present writ petition. III. A. DISCUSSION The Third Amended Section 387 Petitions O.G.H. contends that the juvenile court committed reversible error by permitting the Agency to proceed on the third amended section 387 petitions at the August 2010 jurisdiction hearing. He argues that the court s ruling was a violation of due process or at least an abuse of discretion. O.G.H. s due process argument is that he was denied adequate notice of the allegations against him because the third amended section 387 petitions were filed on August 18, 2010, the same day the contested jurisdiction hearing commenced. O.G.H. relies on authority establishing that [notice] of the allegations upon which the deprivation of custody is predicated is fundamental to due process. [Citations.] Accordingly, a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge. [Citation.] (In re Fred J. (1979) 89 Cal.App.3d 168, 175; see also § 387, subd. (b) [ [the] supplemental petition . . . shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation of the minor. ].) O.G.H. fails to acknowledge, however, that the petitions that were filed on the first day of the jurisdiction hearing were not new section 387 petitions, but rather third amendments to section 387 petitions that were filed in December of 2009. The new amendments simply alleged one additional reason why the previous disposition was not adequate to protect the children, i.e., because the father s home situations over the past year have been unfit and present dangers to the child and child s sibling . . . . O.G.H. does not argue, nor do we find, that this new allegation was an essential component of the jurisdiction order the court ultimately entered. Rather, the juvenile court simply permitted the Agency to amend the section 387 petitions to conform to proof. 27 Amendments to conform to proof play an important role in the overall dependency scheme because petitions are typically drafted in haste by lay persons who are asked to provide no more than a concise statement of the pertinent facts. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041 (Jessica C.).) Amendments to juvenile court petitions are subject to the same rules that apply in civil actions. (§ 348.) If a variance between pleading and proof . . . is so wide that it would, in effect, violate due process to allow the amendment, the court should, of course, refuse any such amendment. [¶] The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice. [Citation.] (Jessica C., supra, 93 Cal.App.4th at pp. 1041-1042.) In the present case, the new amendment was essentially an update of the same old problems. Furthermore, the record shows that O.G.H. was well aware of the events that gave rise to the new allegation and that the Agency intended to present those matters to the court at the jurisdiction hearing. As reflected in our factual summary, the recent events or events that were only recently discovered by the Agency, were (1) O.G.H. s sexual relations with 15-year-old Jane Doe, (2) ongoing domestic violence in O.G.H. s home; and (3) O.G.H. s decision to live with Rachel and permit her to use drugs in his home. O.G.H. s relationships with Jane Doe and Rachel were thoroughly addressed in Agency reports filed in July 2010, several weeks before the jurisdiction hearing commenced. Further, domestic violence has been a primary Agency concern throughout this case. The fact that the Agency now had evidence that O.H. and his girlfriend were also fighting in the home was simply additional evidence of a long-standing problem. O.G.H. contends that he was unfairly prejudiced by Jane Doe s testimony. He contends that he was denied the opportunity to properly cross examine or impeach Jane Doe because she was permitted to testify outside of his presence and her identity was not disclosed to him before she testified. The record before us shows otherwise. Before Jane Doe testified, O.G.H. s counsel explained that her client had seen two women outside the courtroom that morning and that he wanted to know which of them 28 was Jane Doe. Counsel also stated that she had impeachment material to use against one or the other of them. O.G.H. s trial counsel did expressly acknowledge that she understood why O.G.H. was going to be excluded from the in-chambers proceeding, but stated that he needs to know who the person is whose making these allegations. Therefore, she requested that O.G.H. be allowed to see Jane Doe through a conference room window so he could know who she was. The juvenile court denied the request for the following reasons: First O.G.H. had received copies of Agency reports which contained sufficient details about Jane Doe to enable O.G.H. to identify her, including her age and the relevant time frame. Second, one of the prior reports that O.G.H. received had identified Jane Doe by name, although that inadvertent disclosure was later stricken from the record. These facts, which O.G.H. does not dispute in his writ petition, undermine O.G.H. s claim that he did not know Jane Doe s identity. Beyond that, O.G.H. s counsel conducted a thorough cross-examination of Jane Doe which leaves no doubt that O.G.H. was aware of her identity prior to the hearing. O.G.H. does not now identify any additional evidence or testimony on the subject of Jane Doe that he was prevented from offering because of a lack of notice of her identity. Instead, he contends that the best impeachment evidence against Jane Doe was the paternity test which showed that he was not the father of her child. Since the paternity test was not conducted until after the jurisdiction hearing, it has nothing to do with the issue we address here, which is O.G.H. s claim he was denied adequate notice of Jane Doe s identity. Furthermore, the paternity test was not impeachment evidence because Jane Doe never testified that O.G.H. was the baby s father, but only that he could be the father since she had sex with him several times.7 7 O.G.H. contends that, had the juvenile court known that he was not the father of Jane Doe s baby, it may have reached a very different decision. Again, we disagree. The court was told about the results of the paternity test prior to disposition. Nevertheless, at the disposition hearing, the court expressly confirmed its prior findings that O.G.H. was not a credible witness and that the court believed that O.G.H. did have sexual relations with Jane Doe. 29 O.G.H. has failed to substantiate his theory that his due process rights were violated because the Agency was permitted to proceed on the third amended supplemental petitions on the day the jurisdiction hearing commenced. Nor are we persuaded by his alternative theory that the court abused its discretion by denying his demurrer to the third amended section 387 petitions. O.G.H. contends his demurrer should have been sustained because the new allegation that was added by the third amended petitions was not sufficient to establish a prima facie case that the previous disposition failed to adequately protect the children. There is authority that a motion akin to a demurrer may be filed to test the sufficiency of the allegations in a section 387 petition to change the prior disposition for a dependent child. (In re Fred J., supra, 89 Cal.App.3d at pp. 176-177.) However, O.G.H. overlooks the fact that the petitions at issue here were not section 387 petitions, but third amendments to section 387 petitions. O.G.H. does not provide any authority that an amendment to an otherwise sufficient section 387 petition must allege new facts which, by themselves, establish an independent ground for the petition itself. Furthermore, as a factual matter, we reject O.G.H. s contention that the new allegation in the third amended petitions was not a sufficient basis upon which to seek a more restrictive placement for F.V. and E.H. 8 In the lower court, O.G.H. argued the new allegation and evidence was irrelevant because O.G.H. s living conditions and behavior during the previous year could not have harmed the children or otherwise affected the prior disposition because the children had been placed with Edith P. and were not living in his home. This argument is patently unsound. Evidence of the home environment that O.G.H. created during a period that the children were not only court dependents, but technically still in his custody was unquestionably relevant. O.G.H. has misconstrued the November 2009 disposition order as an open-ended invitation to act and live in a manner which is inconsistent with the obligations of a 8 O.G.H. does not share his demurrer theory with us in his petition, but instead directs the court to argument of the demurrer made at trial. 30 parent of young children, while his own young children were placed with Edith P. at the Agency s expense. We construe that order differently. The prior disposition in this case was that the dependencies were continued but the children were returned to O.G.H. s custody, and that O.G.H. voluntarily agreed to place the children with Edith P. on a temporary basis, only until he could prove to the court that he had stabilized his housing. The allegation that O.G.H. had maintained a dangerous and unstable home for the past year was directly relevant to establish that the prior disposition needed to be changed. B. Statements M.V. Made to the Agency Social Worker O.G.H. contends that the juvenile court committed reversible error by admitting evidence of the statements that M.V. made during her April 2010 telephone conversations with Emelia Jones, the Agency social worker. He contends those statements were hearsay and inherently unreliable. The Welfare and Institutions Code does not preclude the admission of hearsay evidence at a jurisdiction hearing. Rather, section 355, subdivision (c)(1), provides that, if a timely objection is made to specific hearsay, the juvenile court may not use that specific hearsay evidence as the sole basis for a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the Agency establishes that one of exceptions specified in section 355 applies. In the present case, O.G.H. spends considerable time attempting to establish that none of the exceptions delineated in section 355 apply and that M.V. s statements are inherently unreliable. We need not address these arguments, however, because O.G.H. has not even attempted to make the threshold showing that any jurisdictional finding or material factual finding is supported solely by a hearsay statement from M.V. Nor could he make such a showing on this record. C. Substantial Evidence Issues O.G.H. challenges the sufficiency of the evidence to support several of the juvenile court s findings. Although we will address each finding that O.G.H. challenges, 31 we note for the record, that there were several independent grounds upon which the court terminated services to O.G.H., especially with respect to F.V.9 1. Section 361.5, subdivision (b)(10) This provision authorizes the court to deny reunification services when it finds, by clear and convincing evidence: That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. (§ 361.5, subd. (b)(10).) O.G.H. concedes that the juvenile court previously terminated reunification services for N.H. and that O.G.H. failed to reunify with N.H.10 However, O.G.H. contends there is insufficient evidence to support a finding that O.G.H. failed to make a reasonable effort to treat the problems that led to removal of N.H. from his custody. (§ 361.5, subd. (b)(10).) N.H. was removed from O.G.H. because of physical and sexual 9 F.V. became a dependent before the age of three and has already received at least 12 months of reunification services and 12 months of family maintenance services. Under these circumstances, O.G.H. was not entitled to any additional services absent a finding that continuing services would be in the best interests of the child. (See § 361.5, subd. (a); In re N.M. (2003) 108 Cal.App.4th 845, 852.) No such finding was even contemplated in this case. Beyond that, the court also found two other grounds upon which to deny services to O.G.H. 10 O.G.H. also concedes that N.H. and E.H. are half-siblings, but claims for the first time that N.H. and F.V. are not because they have different mothers and O.G.H. is not F.V. s biological father. This theory was not raised below and is unsupported by authority or analysis. For example, O.G.H. does not address whether his status as F.V. s presumed father is sufficient to establish a sibling relationship between N.H. and F.V., at least for purposes of applying this particular by-pass provision. In any event, even if this provision did not apply to F.V., there were other sound grounds for terminated services with respect to this child. 32 abuse. Our factual summary contains more than substantial evidence that O.G.H. failed to make a reasonable effort to treat either of these problems. From the evidence, the court could have found that there has been ongoing domestic violence in O.G.H. s home and that O.G.H. was an active participant. Indeed, while F.V. and E.H. have been court dependents, O.G.H. has physically abused both M.V. and his twin boys. There is also substantial evidence that O.G.H. continues to engage in sexually inappropriate if not abusive conduct. O.G.H. had a sexual relationship with a 15-year-old girl in his home and he may also have had sex with M.V. s teenage sister Rachel. Other incidents that have occurred during the dependency, though arguably insufficient in isolation, strengthen the court s finding that O.G.H. continues to engage in sexually inappropriate conduct. The incident involving A.H. in bed with F.V. while she was half naked reflects the home environment and lifestyle that O.G.H. has created for his children. Furthermore, the neighbor report that O.G.H. was completely naked in a bathroom with a sobbing F.V. is strikingly similar to the incident which led to the removal of N.H. from O.G.H. s care all those years ago. Finally, O.G.H. s prior documented behavior makes it impossible for us to discount M.V. s concerns regarding O.G.H. s behavior around and relationship with F.V. 2. Section 361.5, subdivision (b)(13) This by-pass provision authorizes the court to deny reunification services when it makes the following finding by clear and convincing evidence: That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible. (§ 361.5, subd. (b)(13).) This provision creates two bases for denying services: either (1) where the parent with a significant substance abuse problem has resisted treatment of that problem during the three years prior to the filing of the petition; or (2) where the parent has twice 33 previously been provided and failed or refused to take advantage of available rehabilitation services while under the supervision of the juvenile court. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-781 (Laura B.).) In the present case, the Agency relied on the first of the two grounds set forth in section 361.5, subdivision (b)(13), i.e., that O.G.H. has resisted treatment for his alcoholism during the three-year period prior to the filing of the petition. Case law establishes that it is not the court ordered treatment program, but rather the resistance to treatment that must have occurred during the three-year period prior to the filing of the petition. The Agency must show that a parent has previously undergone or enrolled in substance abuse rehabilitation. Then, during the three years prior to the petition being filed, the parent evidenced behavior that demonstrated resistance to that rehabilitation. Such proof may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety. (Laura B., supra, 68 Cal.App.4th at pp. 778-781.) In the present case, O.G.H. was ordered to participate in substance abuse treatment in connection with the first section 300 petition filed on behalf of N.H. in 1992. The record contains substantial evidence that O.G.H. has resisted treatment by consuming alcohol on a regular basis during the past several years. That evidence includes admissions O.G.H. has made to treatment counselors, reports from family members and neighbors, and evidence regarding O.G.H. s efforts to avoid detection through alcohol screens by confining his drinking to specific time periods and consuming excessive amounts of water in order to dilute his screens. Indeed, the court could properly have found that O.G.H. has resisted treatment for his alcoholism for more than 20 years. Ignoring most of the evidence in the record, O.G.H. contends that his voluntary and successful completion of a treatment program at Free at Last precluded the court from applying this by-pass provision to him. We disagree. O.G.H. essentially admitted in open court that he participated in that program in order to gain favor with the court, not because he was committed to treating his life-long alcohol problem. Indeed, throughout this case O.G.H. has repeatedly and consistently denied that he has a drinking problem. 34 3. Unstable housing O.G.H. challenges the court s finding that he has failed to comply with court orders to maintain stable housing. The record before us contains overwhelming undisputed evidence that O.G.H. has never provided F.V. or E.H. with a safe stable home. O.G.H. does not contend otherwise. Instead, he complains that the court somehow erred by considering evidence of his housing problems during the periods that the children were living with Edith P. O.G.H. reasons that this evidence was not relevant because the children were not directly affected by his housing problems when they were not living with him. O.G.H. s notion that he was free to live however he pleased so long as the children were living outside his home is indicative of his fundamental misunderstanding of the nature and purpose of the dependency law. O.G.H. has received extensive services so that he would have the opportunity to establish and maintain a safe home for his children. The record before us shows that O.G.H. completely failed in that endeavor. D. The Finding that the Children Could not be Returned to O.G.H. O.G.H. contends that F.V. and E.H. should have been returned to his custody at the conclusion of the disposition hearing. He points out that section 366.22, subdivision (a) mandates that the children be returned absent a finding that such a return would create a substantial risk of detriment to the children s physical or emotional well being, and that the burden of proving detriment was entirely on the Agency. These vague contentions fail to sufficiently address the circumstances of this case. O.G.H. intimates that the court failed to properly consider or appreciate O.G.H. s effort and progress during this proceeding, which included completion of a parenting class, anger management program, participation in drug testing and consistent and regular visitation with his children. Despite these efforts, there is absolutely overwhelming evidence in this record to support the trial court s finding that the children could not safely be returned to O.G.H. s custody. O.G.H. complains that the court held him to too high of a standard, relying on authority which recognizes that [w]e do not get ideal parents in the dependency system 35 and that [w]e are looking for passing grades here, not straight A s. (Quoting David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789-790.) However, this is not a close case. O.G.H. did not achieve passing grades. IV. DISPOSITION The petition for extraordinary relief is denied on the merits. The temporary stay of the section 366.26 hearing is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).) _________________________ Haerle, Acting P.J. We concur: _________________________ Lambden, J. _________________________ Richman, J. 36

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