Filed 6/24/22 Jason H. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Elizabeth Egan, Judge.

Amanda K. Moran for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner Jason H. (father) seeks extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders made at a Welfare and Institutions Code section 366.3[1] permanency planning review hearing terminating his reunification services and setting a section 366.26 hearing for July 27, 2022, to implement a permanent plan of adoption for his now nine-year-old daughter, Bella H. Father contends the Fresno County Department of Social Services (department) failed to make reasonable efforts to provide him family reunification services and the juvenile court abused its discretion in not continuing reunification services. He seeks a mandate directing the juvenile court to vacate the section 366.26 hearing and either return Bella to his custody and terminate dependency or continue reunification services. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Prepermanency Proceedings

On June 1, 2019, police officers responded to a report of domestic violence between father and his ex-girlfriend, S.V., Bella’s mother. Bella lived with father in the home of the paternal grandmother, Mildred, who was out of town. Mother had spent the night. Father went through mother’s tablet and noticed she was talking with other men. When she attempted to leave, he flung an Igloo water cooler at her striking her on the right forearm and kicked her twice on her left leg and ankle. She had visible injuries as a result. The parents continued their argument in the vehicle as father was taking mother home and Bella witnessed their physical altercation. A bystander contacted police and father was arrested. There was an active restraining order protecting mother from him.

Bella was taken into protective custody and placed with her godmother. The department filed a dependency petition on Bella’s behalf, alleging she came within the juvenile court’s jurisdiction under section 300, subdivision (b)(1) (failure to protect) because her parents exposed her to domestic violence. In its report for the detention hearing, the department advised the juvenile court that mother had a criminal history dating back to 1997, including possession of marijuana and vandalism. Father had a criminal history dating back to 1992, including carrying a loaded firearm in a public place, inflicting corporal injury on a spouse/inhabitant, cruelty to children, and grand theft. They also had 12 referrals dating back to 1998 for general neglect, and physical and emotional abuse of Bella and her half siblings.

The juvenile court ordered Bella detained and offered the parents parenting classes, mental health and domestic violence assessments and any recommended treatment. At the jurisdiction/disposition hearing in October 2019, the juvenile court exercised its dependency jurisdiction over Bella and ordered the parents to complete the services previously offered. By that time, Bella had been placed with Mildred.

In November 2019, the department filed a modification petition (§ 388) asking the juvenile court to order father to complete a substance abuse assessment and any recommended treatment and submit to random drug testing. The department explained that father disclosed, during his domestic violence inventory, that he used marijuana for medicinal purposes to treat pain and nausea related to Crohn’s disease. The court denied the petition.

By December 2019, father completed a parenting program and progressed to unsupervised visits. He completed his assessments and was referred for individual therapy and a 52-week child abuse intervention program and a batterer’s intervention program. However, he did not enroll in the programs or meet with the social workers to discuss it. By June 2020, the parents had liberal visitation with Bella.

In June 2020, the department investigated a crisis referral alleging mother was abusing drugs and physically abusing Bella’s half siblings and father violated the restraining order by having contact with mother. The referral arose from an incident in which mother and her boyfriend and mother’s children, 14-year-old James, 13-year-old Tatiana and Bella, went to the home of mother’s adult son “Max” and his girlfriend for dinner. Max informed mother that Bella had a TikTok account and was posting inappropriate videos of herself dancing. He believed she was too young to have a social media account and suggested mother speak to the care provider. Mother took offense and hit Max. She and the children left. Back home, James and Bella got into an argument. Mother felt James was at fault and broke his cell phone, pulled his hair, and punched him, creating several marks on his body and face. Tatiana and Bella retreated to the bathroom. The following day, mother tried to contact the former care provider and Mildred to have one of them pick Bella up. After she was unable to get in touch with them, she contacted father who retrieved Bella. Mother claimed she believed the restraining order had expired. At a child and family team meeting a week later, the department decided to remove Bella from Mildred after father denied picking Bella up from mother’s home and Mildred lied to cover him by saying that she did.

Bella was placed with Max who was in the process of securing a larger home and was willing to provide a permanent plan for her. The department facilitated ongoing visitation for Bella with Mildred.

The department recommended the juvenile court terminate reunification services at the 12-month review hearing. It opined the parents’ prognosis for reunification was poor. Father was not enrolled in domestic violence classes and, although mother was participating in services, she had not benefitted from them.

In September 2020, the juvenile court terminated reunification services at the 12‑month review hearing and set a section 366.26 hearing. Neither parent sought extraordinary writ review.

The department recommended the juvenile court continue Bella in a plan of continued foster care with a permanent plan of placement with a relative. By that time, Bella had been removed from Max and placed with a paternal great-aunt who was willing to adopt her. However, because Bella had been in six placements, three of which were with relatives, the department wanted her to attain some stability before assessing her for adoption.

In February 2021, at the section 366.26 hearing, the juvenile court continued Bella in foster care, finding it would be detrimental to terminate parental rights, and set a review hearing for August 2, 2021. The hearing was continued until August 16, 2021.

On August 5, 2021, father’s attorney filed a section 388 petition asking the juvenile court to reinstate reunification services. As evidence of changed circumstances, she alleged father completed a 52-week child abuse intervention/parenting program on July 22, 2021, and a batterer’s intervention program on July 30, 2021. He and Bella maintained a strong bond and Bella expressed her desire to live with him. He could offer her a stable and loving home. County counsel and minor’s counsel opposed the request. The court set a hearing on father’s section 388 petition for August 16, 2021, and continued it until October 4, 2021.

Postpermanency Grant of Reunification Services on October 4, 2021

The juvenile court granted father’s section 388 petition at the October 4 hearing and set a review hearing for March 28, 2022. The court ordered father to complete substance abuse, domestic violence and mental health assessments and recommended treatment and submit to random drug testing.

By the review hearing, father had essentially completed his court-ordered services and was visiting Bella unsupervised twice a week. He had two more substance abuse classes to complete the program and was participating in random drug testing. He was cleared for positive results for THC as long as his levels remained in the target range.

The department, however, did not believe Bella could be safely returned to father’s custody. He had not resolved the problem requiring her removal, resisted having to repeat some of his services and was uncooperative in producing documents the department needed. Bella meanwhile was doing extremely well in her great‑aunt’s home and the great-aunt wanted to move forward with adoption. The department recommended the juvenile court terminate father’s reunification services and set a section 366.26 hearing.

Postpermanency Review Hearing on April 8, 2022

The postpermanency review hearing scheduled for March 28, 2022, was continued, and conducted on April 8, 2022. Father’s attorney sought to show that Kaitlyn Irby, the social worker assigned Bella’s case, failed to comply with the juvenile court’s October 4, 2021, order and communicate with him, resulting in excessive delay in obtaining his referrals and in advancing visitation.

Irby testified she sent out referrals for father on November 3, 2021, after she received the minute order. She sent father a service letter informing him services had been arranged for him and explaining how to access them. On November 18, 2021, father provided Irby documentation regarding his marijuana use but it did not meet the department’s requirements. The department required the prescription for medical marijuana as well as the medical card in order to assess whether the parent was using marijuana as prescribed. Irby informed father that day that his documentation was insufficient and advised him not to use marijuana until he provided the additional information. Father did not drug test from December 6 to 20, 2021, claiming he was sick. However, he visited Bella in person during that time. Irby asked father multiple times for documentation clearing him from testing because he was ill, but he argued about having to provide it and then took time to produce it. He did provide Irby a doctor’s note from an appointment he had on December 16, 2021, asking her to clear him from December 6 to December 20, 2021, but without any explanation. On January 14, 2022, father provided Irby information about Marinol, a synthetic form of THC, that his doctor prescribed for him. Because father was testing positive for THC and had not provided the proper documentation, Irby was not allowed to advance him to unsupervised visits until February 2022. He visited Bella at his mother’s house.

The department believed it would be detrimental to return Bella to father’s custody because although he completed his services, he never took responsibility for Bella being in foster care and blamed the mother. In addition, he lived with his cousin who refused to authorize a background check and the department was unable to assess how father would parent Bella because Mildred was always present.

Irby saw no change in father’s behavior and demeanor since Bella was removed from him. He still had the “same standoff-ish and anger towards the [d]epartment that he had the first time.” He believed the department was “in the wrong” and that Bella should not be foster care. In addition, he had not shown that he learned anything from his domestic violence classes. As recently as January 25, 2022, he angrily addressed Irby following a meeting.

Father testified he stopped using marijuana in late November 2021. He missed drug testing in December 2021 because his Crohn’s disease flared up. He was not taking marijuana or Marinol and was participating in random drug testing. In domestic violence classes, he learned to take responsibility for his erroneous thinking and behavior and that violence was a choice. His visits with Bella were very emotional and she was excited to see him. She ran to him, yelling, “ ‘Daddy, Daddy’ ” and they hugged a lot and kissed. He believed he was better equipped to care for Bella than he was in 2019 when the case was initiated and could provide her a safe home. Father accepted that Bella being in foster care was his fault because he chose to have a relationship with mother and to engage in domestic violence with her. If Bella was returned to his custody, he planned to live with his mother.

Under questioning by county counsel, father denied accusing Irby of being biased against him. He believed she was not supportive of him and Bella. County counsel moved to admit a declaration prepared by father and his attorney and addressed to county counsel, asserting that Irby purposefully and intentionally failed to assist in the reunification process and requesting that she be removed from the case. The declaration was admitted as an exhibit.

Juvenile Court’s Rulings

The juvenile court found by a preponderance of the evidence that returning Bella to father’s custody would create a substantial risk of detriment to her. The court found the department provided father services designed to overcome the problems which required Bella’s removal and made reasonable efforts to finalize a permanent plan. However, father’s progress toward alleviating those problems was minimal. The court found continued foster care was no longer the appropriate plan and that it was in Bella’s best interest to reach a resolution. The court terminated father’s reunification services and set a section 366.26 hearing.

In ruling, the juvenile court commented on the evidence, stating,

“The evidence shows that [f]ather has participated in services and progressed in visitation to unsupervised during the post-permanency grant of reunification services beginning in October, 2021. The evidence reflects that he has been in communication with the [d]epartment. The evidence also shows that he’s attended treatment programs for the issues that brought Bella to the attention of the dependency court in 2019. The evidence also shows, that by [f]ather’s statements and actions, that he has not made substantive progress in utilizing what has been order[ed].

“Father has not demonstrated that he has benefited from those services in order to care for the child and provide a safe home for her to return to. He appears to be going through the motions, which is not the same as making progress. Father has shown a propensity to blame others for the situation he finds himself in.

“At the [12-month review hearing], evidence was presented that he resisted treatment, didn’t agree with professional providers, and was inflexible. He has shown the same characteristics throughout this [most recent] reunification period. He resisted providing required information to the social worker to progress visits with Bella. Evidence is abundant in the testimony and exhibits that direction was offered to [f]ather and to explain what information was necessary to establish Bella’s safety in progressing visitation. [Father] was resistant to the social worker’s attempts to communicate with him and assist him. Recently insisting she is biased towards him.

“Since 2019, [father’s] conduct with providers and the [d]epartment has been at times open, and at other times, openly confrontational. Father has remained focused on the issues with domestic violence with the child’s mother, in violation of the [restraining order], and much less on the plan of providing a safe and stable home for Bella.

“[Father] tested positive for THC throughout the majority of the reunification period including after he was advised to refrain from the substance, and he was a no-show for testing during the period before his medical verification for use of a prescription product could be established. Father states he was sick to the point of being bedridden, but was also able to visit at the visitation center during the same time period. A sober care giver is a paramount issue in all child welfare case[s], and the progression of his visitation with his child was delayed by his failure to comply with the [d]epartment’s request.

“Additionally, [father] has failed to provide the [d]epartment access to his home and his roommate’s background to ascertain [if] the child could be safely maintained there. He has visited with the child primar[ily] at the visitation center and with [the] paternal grandmother at her home, the previous placement in the original reunification—a placement Bella was removed from.

“The report and testimony of the social worker support the Court’s finding that there is clear and convincing evidence that reasonable efforts have been made to help [father] to overcome the problems that [led] to the initial and continued removal of the child and not to be able to return her to a safe home.”

This petition ensued.

DISCUSSION

Applicable Legal Principles

Section 366.3 Generally

After the selection of a permanent plan, periodic review hearings must be conducted pursuant to section 366.3. (In re Marilyn H. (1993) 5 Cal.4th 295, 305.) For children who have neither been ordered placed for adoption nor with a legal guardian, section 366.3 specifies that “the status of the child shall be reviewed at least every six months” (id., subd. (d)(1)) in order to inquire into “the progress being made to provide a permanent home for the child” (id., subd. (e)). Thus, “[t]he statutory scheme ensures that efforts are continuously being made to find a more permanent placement for a child in long-term foster care.” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1178.) The legislative preference is “for adoption over legal guardianship over long-term foster care.” (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 885.)

Subdivision (e) of section 366.3 specifies 10 categories of findings that must be made at each review hearing for children in long-term foster care. Among the required findings, as pertinent here, are determinations concerning “[t]he continuing necessity for, and appropriateness of, the placement” (id., subd. (e)(1)), “[t]he extent of progress the parents … have made toward alleviating or mitigating the causes necessitating placement in foster care” (id., subd. (e)(7)), and “[t]he extent of the agency’s compliance with the child welfare services case plan in making reasonable efforts either to return the child to the safe home of the parent or to complete whatever steps are necessary to finalize the permanent placement of the child” (id., subd. (e)(4)).

Subdivision (h)(1) of section 366.3 imposes additional requirements at such hearings with respect to children in foster care. Among other things, it directs the court to consider all permanency planning options for the child, including whether the child should be returned to the home of the parent or placed for adoption. (§ 366.3, subd. (h)(1).) The court is required to set a section 366.26 hearing unless it determines by clear and convincing evidence that there is a compelling reason for determining that a section 366.26 hearing is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship as of the hearing date. (§ 366.3, subd. (h)(1).)

“Thus, section 366.3 expressly contemplates that, absent a ‘compelling reason,’ a section 366.26 hearing will be scheduled at any postpermanency status review hearing conducted by the juvenile court pursuant to section 366.3 in a case in which the previously selected permanent plan was long-term foster care. … When the court conducts the review hearing, it ‘proceeds under a presumption that long-term foster care is inappropriate. It is obligated to act accordingly.’ ” (M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1178.) Thus, a parent wishing to block reconsideration of the child’s permanent plan under these circumstances bears the burden of proving there is a compelling reason to forgo a new 366.26 hearing because it is not in the child’s best interest. (Id. at p. 1179.)

Notwithstanding the requirement that the court consider “return … home” as a permanent plan option for a child in foster care (§ 366.3, subd. (h)(1)), there is a statutory presumption in favor of continued out-of-home placement rather than efforts to return the child home. Subdivision (f) of section 366.3 states: “It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.” In such cases, the statute permits the court to order further reunification services to return the child to a safe home environment for up to six months, and family maintenance services as needed for an additional six months. (Ibid.) It also requires a description of the specific reunification services required to effect the child’s return to a safe home in cases where the reviewing body determines that a second period of reunification services is in the child’s best interests, and that there is a significant likelihood of the child’s return to a safe home due to changed circumstances of the parent, pursuant to section 366.3, subdivision (f). (Id., subd. (e)(4).) “By placing the burden of proof on the parent and focusing exclusively on the child’s best interests, section 366.3, subdivision (f) promotes the welfare of the child and avoids interference with permanency planning, while leaving open the possibility of reunification in those rare cases where it might remain the child’s best option.” (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1041.)

Reasonable Services

Reunification services provided to a parent during the prepermanency stage of dependency are treated differently than postpermanency services in terms of their adequacy. (In re Christian K. (2018) 21 Cal.App.5th 620, 627.) While the parent is being provided reunification services during the prepermanency phase, the juvenile court must hold statutory review hearings and find by clear and convincing evidence that reasonable services have been provided. (§§ 366.21, subds. (e)(3) & (g)(2); 366.22, subd. (a)(3); In re Alvin R. (2003) 108 Cal.App.4th 962, 971 [reasonable reunification services finding must be made by clear and convincing evidence].) If the court finds that reasonable services were not provided during the initial 12 months of the reunification period, it is prohibited from terminating services and must order continued services.

Once the juvenile court denies or terminates reunification services and moves to the permanency planning stage, the focus shifts to protecting a child’s stability and facilitating permanency. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Although the court must assess the extent of the agency’s compliance with the child welfare services case plan in making reasonable efforts to return the child to the parent, section 366.3 “does not mandate a particular consequence if adequate services are not provided.” (In re Christian K., supra, 21 Cal.App.5th at p. 627.) “Because no consequence is mandated for the failure to provide reasonable services, the statute confers discretion upon the court to issue any appropriate order to protect a child’s stability and to expedite the child’s permanent placement—which may or may not include further services—regardless of whether services are found to have been wanting.” (Ibid.)

Standard of Review

Father contends the primary issue in this case is the interpretation of “reasonable efforts” and whether the department met its burden of providing them to him. He requests de novo or independent review of the legal standard required to return Bella to his custody under section 366.3, subdivision (e)(4).

The real party in interest contends the issue before the juvenile court was placement, which is generally reviewed for abuse of discretion. We agree.

The burden and standard of proof in a proceeding under section 366.3 is the same as under section 388; i.e., the parent must show that the outcome he or she requests serves the child’s best interest. (In re Dakota H. (2005) 132 Cal.App.4th 212, 226.) Accordingly, the juvenile court’s ruling will not be disturbed absent a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415−416.) We “ ‘interfere only “ ‘if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’ ” ’ ” (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

The Juvenile Court Did Not Abuse Its Discretion in Terminating Father’s Reunification Services

The sole issue in this case is whether father established that Bella’s interests were best served by continuing her in foster care rather than pursuing adoption with her great‑aunt. Notably, father does not argue or even suggest that it was not in Bella’s best interest to set a section 366.26 hearing. Instead, he argues the department had no intention of assisting him in reunifying with Bella; it did not provide him a specific and tailored plan or make reasonable efforts to provide him services. We conclude the juvenile court properly exercised its discretion in terminating father’s reunification services.

By the postpermanency review hearing in April 2022, Bella was nine years old. In the three years since she was removed from father’s custody, she had been placed in six different homes. The sixth placement was with her paternal great-aunt, which occurred in December 2020. By all accounts, Bella was very happy living with her great-aunt and the great-aunt was committed to adopting her. Under the circumstances, the juvenile court had no choice but to terminate father’s reunification services and set a section 366.26 hearing. Bella was a proper subject for adoption and was not being returned to father’s custody. (§ 366.3, subd. (h)(1).)

In order to make the case there was a compelling reason for not setting a section 366.26 hearing, father had to show that Bella should be returned to his custody and that doing so was in her best interest. However, he failed to make that showing. Despite having completed his services plan and advancing to unsupervised visitation, father had not demonstrated Bella could be safely returned to his custody. According to the evidence, despite years of services to deal with his propensity for anger, father’s attitude and demeanor remained unchanged. Instead of making earnest efforts to address his domestic violence issues, father blamed Irby and the department for his failure to reunify and Bella’s continued foster care placement and went through the motions instead of making progress.

In his writ petition, as he did in the juvenile court, father faults the department for not providing him a plan tailored to his needs. He fails, however, to identify services not provided that would have been more appropriate in promoting reunification than the ones ordered for him. Further, at no time did he or his attorney claim that the services ordered were ineffectual.

Father also contends Irby failed to make reasonable efforts to assist him in complying. The record, however, does not support his claim. Irby met with him regularly to discuss his case plan requirements. Most notably, she encouraged him to either stop using marijuana so that she could advance him to unsupervised visitation or provide the required documentation to comply with the medicinal marijuana policy. However, father delayed nearly three months in providing the proper documentation. As a result, he lost a significant opportunity to visit with Bella unsupervised and potentially advance to liberal visitation before the postpermanency review hearing. Had he done so, he would have been in a better position to argue that Bella could be returned to his custody and that it constituted a compelling reason not to set a section 366.26 hearing. However, under the facts of this case, we conclude the juvenile court did not abuse its discretion in terminating his reunification services and setting a hearing under section 366.26.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

[1] Statutory references are to the Welfare and Institutions Code.