Filed 5/17/17 John R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOHN R.,

Petitioner,

v.

THE SUPERIOR COURT OF STANISLAUS COUNTY,

Respondent;

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Real Party in Interest.

F075098

(Super. Ct. Nos.
517590 & 517591)


OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge.
Robert D. Chase, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
John R. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)) terminating his reunification services and setting a section 366.26 hearing as to his now three-year-old son, Jordan, and 19-month-old son, Johnny. He contends substantial evidence does not support the findings necessary to terminate reunification services. Alternatively, he contends the juvenile court did not know it had discretion to continue reunification services to the 12-month review hearing. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In May 2016, the Stanislaus County Community Services Agency (agency) initiated dependency proceedings after father and Olivia, the mother of Jordan and Johnny, failed to resolve their domestic violence through family maintenance services. The previous March, Olivia disclosed to social worker Salvador Perez that she and father had a long history of domestic violence and that he once choked her, causing her to pass out. He also “stomped” on her head and sexually assaulted her several times and hit her in front of the children but did not hit or threaten them. Olivia also told Perez that she and father used methamphetamine and he supplied her the drug. She agreed to a safety plan that required her to obtain a restraining order, file for full custody of the children and not attempt any contact with father.
Father denied hitting Olivia and accused her of being physically aggressive with him. He said he was arrested “years ago” for a domestic violence incident with someone else and completed a domestic violence program. He also denied using any drugs and refused to drug test.
Father and Olivia participated in voluntary family maintenance services from March to May 2016. However, Olivia continued to use methamphetamine and maintained contact with father even though she had a restraining order against him. When questioned about the contact, she said that he was “different now.”
On May 11, 2016, the agency took then two-year-old Jordan and seven-month-old Johnny into protective custody and filed a dependency petition on their behalf under section 300, subdivision (b)(1) (failure to protect), alleging father and Olivia’s domestic violence and substance abuse placed the children at a substantial risk of serious physical harm. The agency placed the children together in foster care.
On May 16, 2016, the juvenile court ordered both children detained pursuant to the petition and scheduled a combined hearing on jurisdiction and disposition (combined hearing) for June 13, 2016. That same day, a social worker provided the parents referrals for anger management, individual counseling, domestic violence counseling and a substance use disorder (SUD) assessment.
In its report for the combined hearing, the agency recommended the juvenile court provide both parents reunification services. As to father, the agency proposed a plan that required him to address two main concerns, domestic violence and substance abuse. Specifically, the agency recommended he complete domestic violence, anger management and SUD assessments and follow all recommendations. The agency also recommended he complete individual counseling focused, in part, on domestic violence as a perpetrator.
In June 2016, at the combined hearing, father admitted the allegations in the petition and submitted the matter of jurisdiction on the agency’s report. The juvenile court exercised its dependency jurisdiction over the children, adopted the reunification plans recommended by the agency and set the six-month review hearing for
December 15, 2016.
Father quickly engaged in parenting and counseling services and, by mid-September 2016, had completed parenting classes, as well as individual parenting sessions and one of three scheduled parent/child labs. He completed assessments for domestic violence and anger management in October and was referred for a 26-week domestic violence program. Father also regularly visited the children. However, he refused to complete a SUD assessment, despite numerous opportunities. On October 17, 2016, the social worker asked him to drug test. He did and tested positive for methamphetamine. He claimed he did not have a drug problem and that he used once because it was his birthday.
Olivia also engaged quickly in her services plan and, unlike father, participated in all of her services and maintained sobriety. The agency was concerned, however, that she seemed to place romantic relationships over reunification.
In its report prepared for the six-month review hearing, the agency recommended the juvenile court continue services for Olivia and grant the agency discretion to advance to overnight visits and terminate reunification services for father.
On December 15, 2016, the juvenile court convened the six-month review hearing. Father indicated to the court that he retained private counsel who did not appear at the hearing. The court ordered father to advise his new counsel to file a substitution of attorney by the next hearing and set the pretrial date for January 4, 2017. At the pretrial hearing, the court set a contested hearing at father’s request and scheduled it for January 24, 2017.
Meanwhile, on January 3, 2017, the agency filed an addendum report, recommending the juvenile court terminate Olivia’s reunification services because she left her sober living facility on December 26, 2016, and tested positive for methamphetamine two days later. Olivia claimed she used DayQuil and it produced a false positive. The report, authored by social worker Sheri Collins, also informed the court that father completed a SUD assessment on December 22, but only after learning of the agency’s recommendation to terminate his reunification services and after telling his parenting counselor, Larinda Medlin, that he attempted a number of times to complete his SUD assessment but the person who completed them was not available. He also stated that he missed an assessment on December 13, 2016, because his attorney told him not to go. On December 16, Collins explained to Medlin in an email that SUD assessments were conducted on Tuesday and Thursday mornings at the agency on a first come, first served basis and that she instructed father numerous times he needed to arrive before
8:00 a.m., in order to be assessed. She also reminded him repeatedly that he had limited time to reunify with the children and that it was important that he complete all of his case plan requirements. Collins assured Medlin that father had had plenty of opportunities to complete the assessment and was concerned that he was not being truthful about why he did not complete it.
On January 24, 2017, the juvenile court conducted the contested six-month review hearing. The parties presented their cases by offer of proof and argument. County counsel represented that Collins, if called, would testify that father was scheduled to start substance abuse treatment on January 20, 2017, but did not show up and had to be rescheduled for January 27. Also, Olivia had returned to Stanislaus Recovery Center on January 20, 2017, for 10 days of detoxification. Olivia’s attorney represented that Olivia was making “very good, consistent progress” and relapsed over the Christmas holiday and was very regretful. She was back in treatment and expected to return to her treatment facility in a few days. She believed the court should continue reunification services for her. Father’s attorney represented that father submitted for drug testing twice and tested negative, remained crime free since the children were made dependents of the court, completed six of ten individual counseling sessions, completed an anger management assessment, registered to begin domestic counseling on January 30, 2017, and consistently visited the children. The court accepted the offers of proof.
County counsel argued neither parent regularly participated or made substantive progress in their court-ordered services and there was not a probability the children could be returned to parental custody even if the court continued reunification services. As to father, county counsel pointed out that he had yet to acknowledge being a perpetrator of domestic violence and denied having a substance abuse problem. County counsel urged the court to terminate reunification services for both parents and set a section 366.26 hearing to implement a permanent plan of adoption. Minors’ counsel agreed. Father’s attorney acknowledged that father had gotten a late start in engaging in his reunification services but had taken the appropriate steps by registering for domestic violence, anger management and substance abuse classes. He also argued that father’s conduct did not amount to parental unfitness or warrant termination of reunification efforts, and there was a substantial probability the children could be returned to his custody. He therefore asked the court to continue father’s reunification services. To terminate his services, father’s attorney argued, would not only be detrimental but also a violation of his due process.
The juvenile court terminated father and Olivia’s reunification services and set a section 366.26 hearing. The court did so after finding by clear and convincing evidence that the agency provided the parents reasonable reunification services but that they made poor progress. The court also found there was not a substantial probability the children could be returned to their custody by the 12-month review hearing, which would be scheduled in five months on June 23, 2017.
In ruling, the juvenile court stated it presided over the dispositional hearing and advised both parents that reunification services could be limited to six months because of the age of the children. The court stated, “It appears to me that we are still in a position where parents have not addressed significant substance abuse and domestic violence issues, and those are very significant issues which caused the children to be removed from the care of the parents in the first place.”
The juvenile court further stated,
“[I]n order to continue services, the Court would have to find not only that the parents have regularly and consistently visited with the children, but that they have also made substantive progress or significant progress in addressing the issues that caused the children to be removed from their care. [¶] And although I believe that parents have regularly and consistently visited with their children, I don’t feel that they have made the substantive or significant progress needed for this Court to believe that the children could safely be returned home on or before [the 12-month review hearing].”
The juvenile court concluded its statement with the following, which father contends proves the court did not understand its discretion to continue reunification services:
“So I don’t believe I have any option but to follow the recommendation of the [a]gency, and to approve and adopt the findings and recommendations contained in the addendum report …. ”
DISCUSSION
Standard of Review
We review findings made under section 366.21 for substantial evidence.
(James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) “We do not pass on the credibility of witnesses, attempt to resolve the conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
The juvenile court’s decision regarding whether to extend reunification services to the 12-month review hearing is reviewed under an abuse of discretion standard. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179-180 (M.V.).) The court’s exercise of discretion will not be disturbed in the absence of an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Termination of Reunification Services
When a child is removed from parental custody, the juvenile court is generally required to order family reunification services. (§ 361.5, subd. (a).) The presumptive rule for children such as Jordan and Johnny, who were under the age of three when initially removed from parental custody, is that reunification services will not exceed six months from the date the child entered foster care. (§ 361.5, subd. (a)(2).) Jordan and Johnny entered foster care on June 23, 2016. The rule recognizes that the unique needs of very young children regarding attachment and development “justif[y] a greater emphasis on establishing permanency and stability earlier in the dependency process ‘ “in cases with a poor prognosis for family reunification.” ’ ” (M.V., supra, 167 Cal.App.4th at p. 175.)
Section 366.21, subdivision (e)(1) governs the six-month review hearing. Where, as here, the juvenile court determines that a child who was under the age of three years old on the date of the initial removal cannot be returned to parental custody,
subdivision (e)(3) provides “the court may schedule a hearing pursuant to Section 366.26” if it finds by clear and convincing evidence that the parent failed to regularly participate and make substantive progress in a court-ordered treatment plan. “If, however, the court finds there is a substantial probability that the child, … may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e)(3).)
Thus, the juvenile court must make two distinct determinations in applying subdivision (e)(3) of section 366.21. First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a section 366.26 hearing to terminate parental rights. However, this inquiry does not require the court to schedule a section 366.26 hearing (“the court may schedule a hearing”). (§ 366.21, subd. (e)(3), italics added.) Instead, it authorizes the court to set such a hearing if it makes the required findings.
The second determination required by the statute protects parents against premature section 366.26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a section 366.26 hearing if it finds either:
(1) “there is a substantial probability that the child … may be returned to his or her parent … within six months”; or (2) “reasonable services have not been provided” to the parent.
(§ 366.21, subd. (e)(3).) In other words, the court must continue the case to the 12-month review hearing if it makes either of these findings.
Contentions
Father contends the evidence does not support the juvenile court’s finding he failed to regularly participate in and make substantive progress in his court-ordered services. Therefore, the juvenile court was not authorized under the statute to terminate his reunification services. Father further contends the evidence does not support the court’s findings the agency provided him reasonable reunification services and there was not a substantial probability of return. Therefore, he argues, the juvenile court was required under the statute to continue his services to the 12-month review hearing. Finally, father contends the juvenile court erred in terminating his reunification services because it did not understand it had discretion under the statute to continue services.
Regular Participation and Substantive Progress
Father contends the juvenile court erred in placing the burden on him to prove that he regularly participated in and made substantive progress in his court-ordered services. He also contends the evidence, including the fact that he was enrolled in but not participating in substance abuse treatment and domestic violence counseling, was sufficient to support a finding of regular participation and substantive progress in light of other evidence. For example, father points to evidence he completed his parenting classes and that his counselor Medlin commented on his motivation for positive change, his choice to make the children his top priority and his willingness to accept responsibility for his actions. He admits to being “somewhat resistant to a drug treatment program, and denied that he had a substance abuse issue[,]” but points out that he ultimately completed the SUD assessment and produced two negative, random drug test results while awaiting treatment.
As to the burden of proof, father contends the following statement made by the juvenile court, which we quoted ante, shows the court erroneously shifted the burden of proof to him:
“[I]n order to continue services, the Court would have to find not only that the parents have regularly and consistently visited with the children, but that they have also made substantive progress or significant progress in addressing the issues that caused the children to be removed from their care. [¶] And although I believe that parents have regularly and consistently visited with their children, I don’t feel that they have made the substantive or significant progress needed for this Court to believe that the children could safely be returned home on or before [the 12-month review hearing].”
We find no indication the juvenile court placed any burden of proof on father by this statement. Further, it is clear by the context of the statement and the language used (i.e., regular and consistent visitation and significant progress) that the juvenile court was discussing the probability of return (which we discuss in more detail, post) not regular participation and substantive progress.
Further, we conclude father’s failure to initiate substance abuse and domestic violence services by the six-month review hearing was sufficient to support the juvenile court’s finding he failed to regularly participate in and make substantive progress. Suffice it to say, these were the two critical components of father’s services plan and the key to reunifying with his children. He had not participated in them at all or made any progress.
Reasonable Services
Father contends the agency failed to provide him reasonable reunification services because it “catered” to Olivia. We conclude he forfeited any issue related to the reasonableness of his services because he never raised an objection before the juvenile court. “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.] As some of these courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) This policy pertains here, as neither the juvenile court nor the agency was put on notice that reunification services were inadequate or that the agency had failed to tailor the services to meet father’s needs.
In any event, we would find that father’s reunification services were reasonable. The agency crafted a services plan designed to help father overcome his substance abuse and domestic violence issues and develop effective parenting skills so the children could be returned to his custody. In addition, the agency social worker met with him regularly to review his case plan requirements and assist him as needed. Father does not challenge the adequacy of the services offered or the agency’s efforts to assist him. Rather, he merely argues that the agency treated mother better because it provided her transportation to her drug treatment program even though she had not engaged in domestic violence classes while it penalized him by not allowing him to complete a SUD assessment on November 8, 2016, because he was 15 minutes late. We fail to see how expecting father to show up on time for a substance abuse assessment was unreasonable.
Substantial Probability of Return
Father contends the juvenile court erred by not finding a substantial probability the children could be returned to his custody by the 12-month review date. Section 366.21, subdivision (e)(3) addresses the substantial probability of return and provides, in relevant part, as follows: “If, however, the court finds there is a substantial probability that the child … may be returned to his or her parent … within six months …, the court shall continue the case to the 12-month permanency hearing.” (Italics added.) “Literally, the statute commands the court to determine whether there is a strong likelihood of a possibility of return (not simply a strong likelihood the return will in fact occur).”
(M.V., supra, 167 Cal.App.4th at p. 181.) The court may consider any relevant evidence in making its finding, including whether a parent has consistently and regularly contacted and visited the minor, whether the parent has made significant progress in resolving the problems that led to the minor’s removal, and whether the parent has demonstrated the capacity and ability to complete the objectives of his or her case plan and to provide for the minor’s safety, protection, physical and emotional well-being, and special needs.
Father does not challenge the evidence supporting the juvenile court’s finding. Instead, he argues the juvenile court erred in believing it had to find a substantial probability the children would be returned by the 12-month review hearing. He contends, citing Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 399 (Dawnel D.) the juvenile court is “required to look at the whole six months, and not just at the time remaining prior to the 12 month review” in determining whether there is a substantial probability of return. Viewed in that way, he argues, he could have completed the 26-week domestic violence class by the 12-month review hearing. His contention is not legally sound.
As we alluded above, there are statutory limitations on the duration of reunification services. Section 361.5, subdivision (a)(1), the controlling statute, provides as relevant here:
“Family reunification services, when provided, shall be provided as follows: [¶] … [¶] (B) For a child who, on the date of initial removal from the physical custody of his or her parent …, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent .…”
Thus, the statute establishes a limit of 12 months of reunification services from the date the child entered foster care. In this case, the children entered foster care on June 23, 2016, making June 23, 2017, the 12-month demarcation for reunification services.
Father’s contention in light of the above is that the juvenile court erred in believing it could not find a substantial probability of return because he could not complete the domestic violence class by June 23, 2017. He is mistaken. The California Supreme Court held in Tonya M. v. Superior Court, supra, 42 Cal.4th 836 that “At the six-month review hearing, the juvenile court has no authority to extend services beyond the 12-month review hearing …” and disapproved Dawnel D. on that point. (Tonya M. v. Superior Court, at p. 848.)
In the present case, the juvenile court could reasonably conclude there was not a strong likelihood the children could be returned to father’s custody by the 12-month review hearing given his delay in initiating substance abuse and domestic violence treatment and his continuing denial that he needed such services. Thus, the court’s finding there was not a substantial probability of return within the statutory timeframe was supported by substantial evidence.
Discretion to Continue Services
Father contends the juvenile court’s statement that it “had no option” but to terminate reunification services and set the matter for a section 366.26 hearing shows it did not understand it had discretion to continue services. We disagree.
The juvenile court clearly understood that continuing reunification services was an option at the contested hearing. The attorneys addressed the propriety of doing so in their arguments and the court evidenced its understanding of the option, stating, “if I found that it was appropriate to continue services, [father and Olivia] would have no more than five months.”
A reasonable interpretation of the juvenile court’s remark is that it would be abusing its discretion if it did extend services given father’s failure to meaningfully participate in his court-ordered services and substantively progress toward reunification.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final as to this court.