Filed 4/1/22 J.B. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner J.B. (father) is the father of four children (together, the children), who are dependents of the Monterey County Juvenile Court.[1] Father petitions for extraordinary writ relief from a juvenile court order entered after a contested 18-month review hearing. The order terminated father’s family reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26.[2]

Father contends the juvenile court abused its discretion in concluding that returning the children to his care and custody would create a substantial risk to their safety. Father further asserts the department did not provide him with reasonable reunification services, including housing assistance and therapy. For the reasons set forth below, we conclude the juvenile court did not abuse its discretion and consequently deny father’s petition.

I. Facts and procedural background

These dependency proceedings began following allegations of general neglect by the children’s mother, M. B.-M. (mother), who was struggling with substance abuse and with caring for the children while father was incarcerated in federal prison. Mother is not a party in this proceeding; we set forth here only the facts relevant to father’s writ petition.

Father and mother married in 2010 and have four children together (Kia. B., Jam. B., II, Jar. B., and Jas. B., Jr.), aged 4 to 11 years.[3] Kia. B. is the eldest child. Mother alleged father abused her physically for about 10 years, and she eventually initiated divorce proceedings. By February 2020, father was incarcerated at a federal correctional institution in Oregon.[4]

1. Jurisdictional Proceedings and Early Dispositional Proceedings

In February 2020, while father was incarcerated and the children in mother’s care, law enforcement took the children into protective custody. The department filed juvenile dependency petitions under section 300, subdivision (b)(1), alleging that mother had neglected and failed to protect the children. As to father, the department’s petitions alleged under section 300, subdivision (g), that he was currently incarcerated in a federal correctional institution in Oregon and therefore could not “arrange for the care or custody of his children.”

At the detention hearing on February 11, 2020, the juvenile court ordered that the children remain under the care of the department and appointed counsel for mother and father. The department placed the children in foster care homes in Monterey County.[5]

An uncontested jurisdictional and dispositional hearing occurred on March 10, 2020. Father, who was still incarcerated in Oregon and did not personally appear, was represented by counsel. The juvenile court found it had jurisdiction over the children and declared them dependents of the court. Following a number of court appearances, on September 22, 2020, the court ordered the continuation of family reunification services for both parents.

2. 12-Month Hearing, Report, and Case Plan

On February 26, 2021, the department filed a status review report for the 12-month review hearing (12-month report). The department recommended that the court continue family reunification services for father but terminate services as to mother. The 12-month report noted that father was currently living in a halfway house in Oakland; his projected release date was March 12, 2021. Father was employed doing shipyard work.

The 12-month report was generally positive about father’s communication and conduct during the review period. The department observed father had completed weekly chapters of a parenting workbook and was willing to complete other parenting services. Regarding counseling and mental health services for father, the department noted his needs were “unknown” but that he would pay for therapy if necessary.

The department observed that father had maintained consistent communication with the department and had made himself available to attend parent meetings, child and family team meetings, and video visits with the children. Regarding the children’s educational needs, the department noted that father was willing to participate in educational decisions as they arose.

Nevertheless, the department recommended that the children not yet be returned to father, as doing so would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. The department stated that father needed to demonstrate he could provide a safe environment for the children, was able to meet their basic needs, such as routine medical appointments and safe and stable housing, and could maintain his sobriety. The department observed father appeared to be highly motivated and hoped to have the children returned to his physical care.

The department further stated that father needed to meet the children’s emotional, developmental and educational needs, including by working on building “his natural support network” to support him in parenting the children. Father remained fully engaged in his case plan services and there was a “substantial probability that the children will be able to be safely placed and maintained” in his physical care by August 10, 2021, the date the department requested for the 18-month review hearing.

The 12-month report attached an updated case plan for both parents (case plan). Regarding father, the objectives of his case plan included that he stay free from illegal drugs and comply with drug tests, make himself available to do in-person visitation by driving to Monterey County, follow all conditions of his probation/parole, obtain resources to meet the needs of the children, provide a safe home for them, and identify three to five adults that he could rely on to help care for them.

Mother requested a contested 12-month review hearing, which occurred on April 5, 2021. Neither father nor his attorney appeared at that hearing. After hearing testimony from mother and a department social worker, the juvenile court found that mother was continuing to struggle with her addiction and the children could not be returned to her care at that time. The court departed from the department’s recommendation and ordered continued reunification services for her. The court adopted the department’s recommendation as to father and ordered continued reunification services for him. The court found there was a substantial probability that the children would be returned to the parents’ physical custody at or before the 18-month review hearing.

On April 15, 2021, the department filed an updated case plan. Relevant to father, the April 15, 2021 case plan listed three service objectives: (1) obtain resources to meet the needs of his children and to provide a safe home (more specifically, identify three to five safe and responsible adults that he could rely on to help care for the children and seek employment and appropriate housing); (2) comply with all court orders imposed by the conditions of his release; and (3) develop positive support systems with friends and family (more specifically, identify within 30 days at least two people who could be part of his safety network and provide their names to his social worker). The projected completion date for those objectives was August 10, 2021. The updated case plan also stated that, by August 10, 2021, father was to participate in a county-approved parenting education program and to discuss what he learned with his social worker.

3. Contested 18-Month Review Hearing and Reports

The department filed on July 12, 2021, a notice of the 18-month review hearing and, on July 29, 2021, a status review report (18-month review report), recommending termination of family reunification services for both parents. By the time of the filing of the 18-month review report, father had been released from the halfway house (in March) and was reporting to a United States probation officer. Father’s probation officer told the department that he frequently checked in with father.

The 18-month review report noted that during the review period father had not provided any information that he had participated in counseling or mental health services and his “mental health needs remain unknown.” The report noted that father had indicated “he has been through a lot in his life and would likely benefit from therapeutic services; however, he has reported that due to losing his health insurance he has been unable to participate in therapy.” Father’s probation officer reported to the department that a condition of father’s three-year “parole” was to “participate in a cognitive behavioral therapy program.” The probation officer stated “that there were therapy resources that he could refer the father to and that he would have this discussion with him at their next meeting.” One provider could potentially meet with father “in person and others via telehealth.” The report noted that father was also awaiting conjoint therapy with one of his sons (Jam. B., II), but the therapist reported he had had difficulty scheduling therapy due to father’s work schedule.

Regarding father’s residence, father was physically residing with his sister in Sacramento but had his mail sent to a location in Reno, Nevada. Father told the department he did not feel comfortable having his mail sent to his sister’s house.

Father had been meeting with his probation officer at least monthly since his release from the halfway house and had had two negative drug tests. Father had continued to maintain consistent communication with the department and had made efforts to join child family team meetings during his work time. Father reported to the department that he had some transportation issues and had to find friends that could give him a ride to Monterey County from Sacramento as he did not yet have a car.

Regarding the possibility of returning the children to father’s care, the department concluded that a return to father’s care at that time would create a substantial risk of detriment to their safety, protection, physical or emotional well-being for three reasons. Father had not demonstrated (1) his ability to meet “all his children’s needs or apply parenting skills and appropriate disciplining capabilities consistently during supervised visits, as he has missed some visits”; (2) that he had suitable housing, as he was currently living with his sister and “there is no room for the children there”; and (3) “additional supports to his network that can aid[] him in taking care of the children and all of their needs.”

The department stated that during the review period father was told he needed to make substantial progress in order to reunify with his children. Although he remained engaged in his case plan goals, he had not demonstrated a protective capacity for the children outside a controlled supervised setting, thus leaving the department “unsure of how he can manage all of the children on his own.” The department concluded father had not demonstrated that the children could safely be returned to his physical custody “at this time.”

Regarding visitation during the review period, the department noted that father had weekly, supervised in-person visits with all the children, although he had missed multiple visits because of transportation issues and work conflicts. Regarding father’s inconsistent visitation, the department “understood that the father lives in Sacramento and has to commute, but the Department can only increase visitation when visible parenting insights are seen being implemented in different atmospheres.” Father had only had visits with all of the children “a few times, and they have not been longer than two hours or outside of the supervised visitation room.” The department noted that father had reported “challenges including recently being released from prison, having a criminal record and transportation difficulties.” He was “in the process of looking for housing that would allow for the children to be placed with him” but that this was difficult “[d]ue to his criminal history.” As of the date of the report, father had not provided the department updated housing information. Because father had not demonstrated his “parenting capacity to meet the needs of all the children,” the department recommended father’s family services be terminated.

Both father and mother requested a contested hearing.

In anticipation of the contested 18-month review hearing, father filed a trial brief, which focused on the reasonable efforts made by father to treat the problems that had resulted in removal of the children. It stated, inter alia, that father was still looking for suitable housing but was willing to move to Salinas in Monterey County to be closer to his children. While in prison, he had completed both a 60-hour parenting class and a program called “Inside Out Dad.” Father was awaiting conjoint therapy with a therapist, but the therapist was having difficulty scheduling father due to his busy work schedule. Father missed seven visits due to transportation and work issues. The trial brief stated that father had “the ability to participate in cognitive behavioral therapy through his parole.” Father had been consistently sending cards to the department for the children for their birthdays and to tell them he loves and misses them. Father had been in consistent contact with the department. Father’s trial brief did not assert the department had failed to provide or offer him reasonable family reunification services.

Father filed with the juvenile court two certificates of completion from the parenting course and program he completed in 2019 and a certificate of achievement from a domestic violence psychoeducation group dated March 2021. Father also filed, on September 24, 2021, a character letter and a letter from his probation officer that discussed father’s compliance with federal supervision. The probation officer stated, inter alia, that father lived in Sacramento, had secured employment, had submitted negative drug tests since his release from custody, and had complied with all of his conditions of federal supervision.

The juvenile court commenced the 18-month review contested hearing on September 27, 2021, and completed the hearing on January 19, 2022.[6]

At the hearing on September 27, 2021, the department submitted on its report and reserved its social worker for rebuttal. Father testified at the hearing.

Father testified he was 46 years old. He had been to prison a few times and, when the dependency started, was in federal prison in Oregon. Prior to his most recent incarceration in Oregon, he had lived with the children in Reno, Nevada. At that time, they had been living from “motel to motel.” He had played a substantial role in the children’s upbringing, except when he was incarcerated.

Father viewed himself as a great father in part because of how he had raised his five adult children (who were then 30, 24, 23, 20, and 19 years old). He had taken parenting classes in prison. Those courses were not part of the existing dependency case but had been done prior to the dependency proceedings.

Father left prison in September 2020 and lived in a halfway house in Oakland from September 2020 to March 2021. After his release from the halfway house, father lived at his sister’s home in Sacramento for approximately three months and then moved to a motel.

Father had left his sister’s house because “the situation that [he]was in at [his] sister’s house was toxic” and it “wouldn’t have been a very good place for [his] children to go to.” Father was still living at a weekly motel at the time of the hearing (September 27, 2021). He had discussed housing with the case social worker and had asked the department for help, but the department had told him “pretty much” that “they can’t do anything for [him] and they’re sorry.” He had volunteered to move to Salinas but someone at the department had told him she had researched that and there was nothing she could do because “[he’s] a felon.” He was basically looking for “leads” to get affordable housing to move to Salinas.

Father was working two jobs, a full-time job at a furniture company (over 45 hours a week) and food delivery for DoorDash all day on Sunday. He estimated he worked between 50 and 60 hours per week.

On cross-examination, the department questioned how father would care for the children while he worked. Father responded he “obviously [] wouldn’t work that much.” He noted he could still work 40 hours a week and the children would be in school while he went to work. Father had researched how he would enroll the children in school and had found an elementary school. Father acknowledged that the eldest child (Kia. B.) was 11 years old and was in middle school and that the youngest child (Jas. B.) was four years old and would be in preschool. Father asserted he was aware “they’re all going to the same school except [Kia. B.].”

Regarding visitation, father testified about his weekly in-person visits that had started in March 2021 (when he was released from the halfway house), which had been scheduled for every Saturday and then changed to every Friday. While initially testifying he had made every visit on Saturday, father later stated he missed “a couple” in April and, when questioned on direct examination that it appeared he had missed all the visits in May, father responded “it’s hard to remember.” At some point, the visits changed to Fridays, father testified that the social worker who had taken over the case was “adamant” that visits should be Fridays “or else they were going to . . . discontinue services.” Father acknowledged that he had missed some visits with the children, including the Friday prior to the hearing. He had missed that most recent Friday visit because his work did not allow him to take so many days off.

When the department asked father whether he had read his case plan, father responded that he had “read the whole report over and over and over.” From his perspective, he had done all he was required to do. The two department social workers with whom he had communicated had not informed him he needed to do anything else except “get housing” and do “[his] visits.”

Regarding father’s support network, he stated he had his adult children and his girlfriend whom he described at the hearing as his “significant other right now.” His older sons were planning on moving to Sacramento “pretty soon.” At the conclusion of father’s testimony on September 27, 2021, the juvenile court continued the matter for further proceedings.

The juvenile court resumed the 18-month review proceedings on October 4, 2021. The juvenile court stated it found good cause to continue the matter until December 7, 2021, to allow mother and father to “engage in some additional services.”

In anticipation of the continued 18-month review hearing on December 7, 2021, the department filed an addendum report on December 3, 2021 (addendum). The addendum observed father had continued to stay in “close contact” with the department and had recently begun a parenting program by video and had completed domestic violence classes in March 2021. Father had had multiple telephone “consultations” with the therapist of the eldest of the children (Kia. B.), including one, two-hour long call.

Regarding his support network, the report noted that father had provided his “adult children’s contact information and has identified them, his partner, his sister, and his parents as his support network.” His parents lived in Texas. He told the department he was considering purchasing property there so he could be near them.

Father had a “very demanding work schedule” as he was trying to save money and he often worked “60 hours per week.” He continued to work full time at a furniture manufacturing company based in Sacramento.

Regarding father’s physical residence, the addendum stated that father had reported to the department on November 17, 2021, that he would be moving back in with his sister in Sacramento. When the department had asked him about his previous reports that his sister’s home was “toxic,” father had stated that he and his sister had a “heart-to-heart talk and worked out their issues.” The department noted that it had not yet been able to verify sister’s housing.

The addendum further observed that father had had “many struggles with accessing services due to residing out of county” and that he reported he was currently “on the waiting list for housing through multiple property companies, but stated that there is very limited housing available in the Sacramento area.” He had expressed interest in returning to Reno, Nevada (where he was born and raised) and that “most of his support system is there.” In terms of father’s housing, father “has been advised that as long as his probation officer is in agreement and approves his housing, he is able to move where he chooses and where he will be best supported.”

Regarding visitation, the addendum stated that the children’s visits with father had generally gone well during the review period and, in October 2021, father had had visits with the children on Saturdays at a local park. The department had informed father, on November 29, 2021, that there would need to be an in person “home visit” in order for it to assess his home for potential return of the children.

Father had “expressed frustration” at this requirement and stated that he felt that every month the department placed new requirements on him. He did not feel that the department had provided reasonable services to him. In response to father’s expressed frustration, the department “validated his feelings but advised him that it was critical to assess his home and his support network.” Following that conversation, father was to consult with his sister to confirm a day and time for the department’s social worker to go to his home and meet with his identified support network.

The addendum stated that father’s sister had confirmed she was willing to have the children in her home with father and that she worked (remotely) for a cyber-security company from 7:00 a.m. to 7:00 p.m. However, the department had not yet “verified” her house. Father’s housing still needed to be assessed and “a plan needs to be created in order to support him in managing the children’s appointments.” The department stated, “All parents need support with children and it is very important that the father is able to develop this plan and bring forward the people who will be in his corner.”

The department continued to recommend that the juvenile court terminate father’s and mother’s reunification services.

The juvenile court conducted a further hearing on December 7, 2021. Although there is no reporter’s transcript for that hearing, the record reflects that there was a concern raised about father’s significant other/girlfriend, who had been living with father and who had an open child protective services case in Nevada. The juvenile court continued the contested hearing.

4. January 19, 2022 Continued Hearing and Ruling

On January 19, 2022, the juvenile court heard testimony from father and a department social worker supervisor and issued the ruling that father now challenges.

1. Testimony

Father described the recent weekend visit he had had with Kia. B., the eldest of the children, who was 11 years old. He explained that he could not take all of the children to his residence in Sacramento, although he had planned to do so and had rented a minivan that could accommodate everyone. Shortly before the planned visit, he learned the children had been exposed to COVID-19 and later learned one of them had COVID-19.

Father described his overnight visit with Kia. B. as wonderful and she had been “ecstatic” during the visit. He was living in a fully furnished apartment. During the weekend, a social worker came to conduct a short visit and, according to father, complemented the apartment. On cross-examination by the children’s counsel, father denied having yelled at Kia. B. during the visit. Father noted that she took medications, two inhalers, allergy medicine and medication for “her outbursts.”

Regarding his other visits with the children, father noted that he had asked for video visits rather than in-person visits. When he asked for an in-person visit in November, he had received one.

On direct examination, father testified that he had three people that were part of his “safety network.” Father named his son, who was 20 years old. Father stated that his son would move to Sacramento in “approximately a week and a half to two weeks.” Father did not specify how long son would help him out for but stated that “there is no limit to what we do as a family.”

Father also identified his sister. He acknowledged that his sister worked 12-hour days from home but stated she would “accommodate” if something were to happen and she had to respond to the children. As his third support person, he referred to a coworker/friend. Father acknowledged that he had not provided the department with the names of either his son or his coworker/friend. Father confirmed on direct examination that he recalled the social worker asking him, on more than one occasion, to try to name three people he could rely on for support and in response he “gave her, [he] think[s], 8 to 10 names.”

Father no longer identified his significant other as a support person. He had “pretty much ended” his relationship with his live-in girlfriend because he had been told if she remained “there, that there would be a problem with [him] obtaining custody of [his] children.” He had reached the decision to end the long-term relationship (they had been together since 2017) after he had gone “to court on the 7th.” He acknowledged he had spoken to his ex-girlfriend the day before the hearing. He also agreed he may have previously told a social worker that they were going to be married or engaged. On cross-examination, father stated his ex-girlfriend had provided him information about her child protective services case in order to assist the department, but he had not provided that information to the social worker.

Father admitted his driver’s license got suspended “in 2003 while [he] was in prison” and it was currently suspended. The department asked father how he would transport the children if there were an emergency and father responded his 20-year-old son would take them. The department asked father what would happen if the adult son was not available, and father responded: “That is not possible.” Father also testified on cross-examination that his son would drive the kids back and forth to school “until [he] get[s] [his] license.”

Social worker supervisor Melissa Alejandre testified for the department after the juvenile court indicated it had a few “clarifying questions” for her. Alejandre confirmed that father’s visitation had “been spotty” and there were “several no-shows to in-person visits.” The department had tried to accommodate father’s visits with a video option. Alejandre also confirmed that father had not had overnight unsupervised visits with all of the children during the extended period of time that the children had been in the foster care system. Regarding whether father had taken care of the children by himself their entire lives, Alejandre stated, “The timeframe of that is a bit unclear as to what happened before the detention. The children were physically removed from the mother in February 2020, and I believe the father was incarcerated during that time.”

Father had provided his sister’s information to the department. The social worker responsible for the case had tried to contact sister but she sister did not return the call. Father also had parents in Texas, but they had not passed the “[Resource Family Approval] licensing in their county, and [they] were unable to place the children with them.”

Other than his sister and the children’s paternal grandparents, Alejandre was unaware of anyone else who was a support person for father. She had not seen any such support person in child family team meetings, which is what the department usually requests from parents. Overall, Alejandre had not learned any new information at the current hearing that would change the department’s recommendation that the juvenile court terminate family reunification services as to the parents.

Alejandre testified that the eldest of the children (Kia. B.) had told the department that she wanted to live with her maternal aunt and stay in Salinas and did not wish to live with father. After father was recalled as a witness, father acknowledged that Kia. B. had told him she did not want to move to Sacramento. He asserted that she had told him she wanted to live with him, but in Salinas. He had told her he could not move to Salinas because it was too expensive and she was “kind of upset” and she was tired of “moving schools” and “meeting new friends, and she likes Salinas a lot because she’s grown used to it.”

The parties delivered closing arguments. The department noted at the outset of its argument that “services aren’t at-issue today” and the issue was whether the children could safely be returned home. Father’s counsel did not question the reasonableness of the services provided by the department to father, but rather emphasized that the children would be safe with him.

Children’s counsel expressed concern that father had not actually made contact with schools to seek information or assistance about enrolling the children and concluded that “[t]hings are not exactly in place despite the best efforts” of father. Children’s counsel noted that the “children are thriving in care.” The eldest child had very clearly expressed “yesterday and today” that she did not want to make her father upset or sad but that her preference was to live with a maternal aunt, and the three younger siblings were doing “so well” in their current placement.

2. Juvenile Court Order

Following closing argument by counsel, the juvenile court issued its ruling. In father’s favor, the court generally found him to be “concerned,” “responsible,” “loving,” and “devoted” as a father and a “very hard worker.” The court further observed father had secured what “seems to be safe housing for the children,” though it had taken some time to do so. The court also found father had been looking into therapy for the benefit of the children in the Sacramento area.

However, the juvenile court expressed concerns about the safety and well-being of the children if they were placed with father. The court stated that, even though the proceedings were “now at the 23-month period,” it was finding that “things are continuing to evolve, that the father did know of the CPS involvement with the significant other, and that was delaying the ability of the permanency decision by the Court until more information was learned by the Department to present to the Court.” It also was “very concerned” that after father’s release from custody visitation was “inconsistent.” With the exception of the one overnight visit with Kia. B., father had only had supervised visits with the children and those visits had been inconsistent over time. The court noted that the three younger children had not spent the night with father.

The court acknowledged that father had faced transportation and financial issues, but it also noted that he had “not had a driver’s license for an extended period of time to which he testified this afternoon, and that with [the] Zoom visit, there have been some challenges.”

The juvenile court agreed with the department that “there are many unknowns now at 23 months about the children’s ability to be safe and protected with respect to their physical and emotional well-being, and that they would not risk detriment should the Court make the order[] . . . that they [] be returned to the custody of their father.” The court stated that, despite “this extended period of time,” it “still is not confident that the individuals that the father has identified as the safety network really do understand what the children’s needs are, what would be expected of them, how they would be changing their lives today because the children would be returned, about the children with their varying needs and the close relationship between the father and those children and his understanding of the impact.”

The juvenile court ruled, by a preponderance of the evidence, that returning the children to father’s physical custody would present a substantial risk to their health, safety, or physical or emotional well-being.

As to the reasonableness of the services, the juvenile court found by clear and convincing evidence that the department had continued to provide reasonable services to father (as well as mother). It made no specific findings about the nature of the services that were provided or offered.

The court ordered termination of father’s family reunification services as to the children and directed that a section 366.26 selection and implementation hearing be set for May 2022.

Father timely filed a notice of intent to file a writ petition.

ii. discussion

Father contends the juvenile court abused its discretion in ruling the children could not be returned to his custody and requests that his children be placed with him. He further maintains the court erred in finding reasonable family reunification services were provided or offered to him. The department opposes father’s claims, arguing that substantial evidence amply supports the juvenile court’s ruling.

1. Governing Law and Standard of Review

“The overarching goal of dependency proceedings is to safeguard the welfare of California’s children.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) “While reunification is the preferred outcome when it serves the interests of both parent and child, no interest is well served by compelling inadequate parents to shoulder responsibilities they are unwilling to accept or unable to discharge.” (Id. at p. 1234.)

At the 18-month review hearing, the juvenile court must return a child to the physical custody of his or her parent unless the court finds that return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) At the hearing, the department bears the burden to establish detriment by a preponderance of the evidence. (Ibid.) The detriment standard is “ ‘a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.’ It must mean what it says: that return presents a substantial risk of detriment to the child.” (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.)

In this writ proceeding, we review the record to determine whether substantial evidence supports the juvenile court’s finding of detriment. (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864.) “Substantial evidence is that which is reasonable, credible and of solid value.” (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238 (T.J.).) “When an appellate court reviews a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which would support the trier of fact’s conclusion. We must resolve all conflicts in favor of the court’s determination, and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact.” (In re John V. (1992) 5 Cal.App.4th 1201, 1212 (John V.).) “If there is substantial evidence to support the findings of the juvenile court, we uphold those findings.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

At the 18-month review hearing, the juvenile court may not set a section 366.26 hearing unless it finds by clear and convincing evidence that reasonable services were offered or provided to the parent. (§ 366.22, subd. (b)(3)(C).) “Reunification services should be tailored to the particular needs of the family.” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1425 (Tracy J.).) The juvenile court’s finding that reasonable services were provided is reviewed for substantial evidence. (T.J., supra, 21 Cal.App.5th at p. 1238.)

We review the record for substantial evidence “account[ing] for the level of confidence” demanded by the clear and convincing evidence standard. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995 (O.B.); see In re V.L. (2020) 54 Cal.App.5th 147, 155 [concluding “that O.B. is controlling in dependency cases”].) Eighteen months is generally considered the outer statutory time limit for reunification services. (In re M.F. (2022) 74 Cal.App.5th 86, 102 (M.F.).) “In addition, section 361.5, subdivision (a)(4)(A), and section 366.22, subdivision (b), permit a further extension up to a maximum of 24 months at the 18-month review hearing under certain narrowly defined circumstances.” (In re Malick T. (2022) 73 Cal.App.5th 1109, 1124.)

“This exception applies only if the parent is (1) a parent making significant and consistent progress in a court-ordered residential substance abuse treatment program, (2) a minor or a dependent parent at the time of the initial hearing who is making significant and consistent progress in establishing a safe home for the child’s return, or (3) a parent who was recently discharged from incarceration, institutionalization, or the custody of the Department of Homeland Security (DHS) and who is making significant and consistent progress in establishing a safe home for the child’s return.”[7] (Michael G. v. Superior Court (2021) 69 Cal.App.5th 1133, 1141–1142, review granted Jan. 19, 2022, S271809.)

2. Analysis

1. Risk of Detriment

We turn first to the juvenile court’s finding that the children could not be safely returned to father at the time of the January 19, 2022 hearing. Father appears to contend there was no evidence to support the juvenile court’s decision because it is undisputed father had taken parenting education classes and his visits with the children were generally positive and successful. He notes, for instance, that in his visits with the children “there is barely a mention of inappropriateness nor lack of redirection by the father.” Father further asserts that he had secured suitable housing and had “back-up support by his employer, his sister, his adult son, and a fellow co-worker” which “evidence his commitment to provide a safe, stable environment” for the children. Father also emphasizes he was not the cause of the children’s removal, as he was incarcerated in federal prison when the department initiated the dependency proceedings in February 2020.

Having carefully reviewed the record, and mindful of our deferential standard of review, we are not convinced the juvenile court erred in its decision. Ample evidence supports the juvenile court’s concerns about returning the children to father at the time of its ruling. In particular, the evidence reflects that father did not have the necessary support network in place to assist him in Sacramento given that he would have four children to look after as a single parent while maintaining a demanding work schedule. For example, father identified his sister as part of his safety network, but she worked 12 hours a day, had a “toxic” home according to father’s statements earlier in the dependency period (though he later stated he and she had “worked out their issues”), and, according to the social worker supervisor’s testimony, had not returned the department’s phone call.

Father also identified his 20-year-old son as someone who would support him, but that son had not yet moved to Sacramento. Further, it was not clear that father had communicated to son what was expected of him, including his expectation that son would drive the children to and from school daily until father got his license and would be available to transport the children in case of emergency. Similarly the department had no information about father’s coworker/friend (i.e., the third support person father identified at the January 19, 2022 hearing). Father acknowledged he had not provided the name of the friend to the department so it could conduct further investigation about them. The department social worker supervisor testified she had not seen any support person in child family team meetings, which is what the department usually requests from parents.

Thus, while father appears to argue on appeal that his “back-up support” was adequate, the juvenile court reasonably expressed concerns about the availability and preparedness of the safety network he had identified. The children furthermore had varying needs and ranged in age from preschool to middle school. The eldest child, for example, had to take medications, including for outbursts, and had expressed she did not want to move to Sacramento. Based on the limited and unconfirmed support available to father as of the January 19, 2022 hearing, the juvenile court’s concerns regarding father’s support and safety network and the “many unknowns” that still existed find substantial support in the record.

From these circumstances, the juvenile court could reasonably deduce that the department had shown that return of the children to father “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being” of the children. (§ 366.22, subd. (a)(1).) “We may not substitute our deductions for those of the trier of fact.” (John V., supra, 5 Cal.App.4th at p. 1212.)

There is no doubt that father took significant steps and made commendable efforts toward reunifying with the children, including securing employment and eventually finding housing in Sacramento. The record makes clear how much father loves his children. However, it also shows that the juvenile court carefully considered all the evidence before it, and that the court’s factual findings were supported by substantial evidence. We decide that the juvenile court did not abuse its discretion in concluding that, by a preponderance of the evidence, returning the children to father’s physical custody would present a substantial risk to their health, safety, or physical or emotional well-being.[8]

2. Reunification Services

Father contends he did not receive reasonable family reunification services, asserting that the department did not help him to find housing in the Sacramento area, did not provide him with therapy resources, and told him he could only have visits on Fridays and, if he did not visit on Fridays, “they would discontinue services.”

As an initial matter, we note that father did not challenge the findings of reasonable services in the juvenile court’s prior dispositional orders, and the time to challenge those earlier orders has long since passed. (§ 395, subd. (a)(1); In re S.B. (2009) 46 Cal.4th 529, 532; Cal. Rules of Court, rule 8.406(a)(1).) We thus do not revisit the findings of reasonable services made in the earlier stages of the dependency proceedings and instead focus on the evidence from the last review period, that is, between the 12-month and 18-month review hearings.

Furthermore, father did not at the 18-month review hearings formally contest the reasonableness of the services offered to him by the department. Father’s trial brief filed in advance of the contested 18-month review hearing did not raise the issue of the reasonableness of services, and, although father testified at the September 2021 hearing that he did not get “any services” from the department as to housing even though he had asked for help “plenty of times,” he did not argue at the final hearing in January 2022 that the department had provided unreasonable services. In any event, the juvenile court ultimately found the department provided father with reasonable reunification services. We turn to whether that finding was adequately supported.

The reasonableness of the department’s efforts are judged according to the circumstances of the case. (Tracy J., supra, 202 Cal.App.4th at p. 1426; In re Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).) “To support a finding reasonable services were offered or provided, ‘the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.’ ” (Tracy J., at p. 1426.) “The social services agency must make a ‘good faith effort’ to provide reasonable services that are responsive to each family’s unique needs. [Citation.] ‘The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ ” (In re J.E. (2016) 3 Cal.App.5th 557, 566.)

We first assess father’s claim the department failed to help him find housing in the Sacramento area. Father elected to live in Sacramento, approximately three hours driving distance away from the children’s and the department’s location in Monterey County. As stated in the addendum report, father had “many struggles with accessing services due to residing out of county” and “there is very limited housing available in the Sacramento area.” While we do not suggest father was required to live in Monterey County, his choice of where to work and live made the department’s provision of services more challenging.

The record further reflects father’s housing situation was complicated by the fact that he had a criminal history. Father had formulated various plans about where he wanted to live, including potentially relocating to Texas to be near his parents. The department told father that as long as his probation officer was in agreement and approved his housing, he could move to a location of his choice and where he would be best supported.

“In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (Misako R., supra, 2 Cal.App.4th at p. 547.) We decide that standard was met here. Overall, father does not provide any authority to support his argument that the reunification services were unreasonable in this case, including with respect to housing. To the contrary, the record reflects that while the department did not directly assist father in his efforts to secure housing, the department continued to communicate and work with father to support his efforts to have the children returned to him safely.

Regarding therapy, we cannot conclude on this record the department’s provision of services was unreasonable. Father’s mental health needs were “unknown” and the department was informed by his probation officer that he had access to mental health services through his federal supervision, including via telehealth. In the addendum filed in December 2021, the department indicated it had worked with father on how to navigate his feelings, including his expressed frustration with the department. Moreover, it does not appear father’s mental health was what brought the family into the dependency system or was a factor in impeding the return of his children. To the contrary, the addendum notes that father was “expected to identify his support network,” “locate housing” and “attend parenting classes.”

Regarding visitation, it is well-established that “[v]isitation is an essential component of a reunification plan” and that “visitation must be as frequent as possible, consistent with the well-being of the child.” (Tracy J., supra, 202 Cal.App.4th at p. 1426.) Father does not appear to meaningfully claim that the department acted unreasonably in terms of his visitation. It continued to work on providing in-person visits for father following his release from the halfway house and later accommodated his request, in November 2021, to have visitation by video. While father points to his testimony that the department essentially forced him to have visits on Fridays rather than Saturdays, in his own testimony, he described the department’s explanation of why Fridays were preferable in terms of the department being better able to observe father with the children. Moreover, the addendum filed in December 2021 notes that visits were again scheduled on Saturdays and the department helped facilitate an overnight visit with the eldest of the children. On this record, we are not convinced the juvenile court erred in impliedly deciding reasonable visitation services were provided to father.

Furthermore, by the time of its January 19, 2022 ruling, the juvenile court correctly observed that father had received 23 months of services, well beyond what is generally considered the outer statutory time limit for reunification services. (M.F., supra, 74 Cal.App.5th at p. 102.)

More generally, father observes that he was in federal prison and thereafter a halfway house for much of the time of the dependency proceedings, and that he effectively only had “five (5) months to do what the mother was given 18 months to do” and that he accomplished much in those months. But the reunification period is not tolled by a parent’s absence or incarceration. (§ 361.5, subd. (e)(1); Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.)

In sum, we conclude the record as a whole contains substantial evidence “from which a reasonable fact finder could have found it highly probable”—based on the clear and convincing standard applicable at the 18-month review—that the department provided father reasonable family reunification services. (See O.B., supra, 9 Cal.5th at p. 1011; § 366.22, subd. (b)(3)(C).)

iii. disposition

Father’s petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

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Danner, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Wilson, J.

H049711

J.B. v. Superior Court

[1] To protect their privacy, we refer to the children as Kia. B., Jam. B., II, Jar. B., and Jas. B., Jr. (See Cal. Rules of Court, rule 8.401(a)(2).)

[2] Unspecified statutory references are to the Welfare and Institutions Code.

[3] Father also has five adult children. Mother has two other children with different fathers; those children are not part of these dependency proceedings.

[4] The record indicates father was convicted of being a felon in possession of a firearm.

[5] While the children changed residences over time, they generally remained in Monterey County. By early December 2021, the three younger children were placed together in one home and the eldest of the children (Kia. B.) was placed in a separate home.

[6] The juvenile court originally scheduled the contested 18-month review hearing for August 31, 2021. However, due to a scheduling issue, the court vacated that hearing date and re-set the contested 18-month review hearing to September 27, 2021.

[7] The juvenile court found that none of these three circumstances applied. Father does not challenge that finding in this appeal. As noted ante, father was released from federal prison in September 2020 and the halfway house in March 2021, long before the January 19, 2022 hearing.

[8] We commend father’s accomplishments in addressing the issues of concern identified by the department and the juvenile court during this dependency proceeding. Father’s continued progress subsequent to the termination of his services may constitute a “change of circumstance or new evidence” warranting his filing of a petition pursuant to section 388 to be heard prior to the scheduled 366.26 hearing. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309.)