Shawn D. v. Sup. Ct.

sFiled 9/14/06 Shawn D. v. Sup. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

This is a petition for extraordinary writ challenging the findings and orders of the juvenile court in setting a hearing pursuant to Welfare and Institutions Code section 366.26.[1] Petitioner Shawn D. challenges the orders of the juvenile court terminating reunification services. He contends that the juvenile court lacked substantial evidence that his daughter Shawna would be at risk in his care. Alternatively, he contends that he did not receive reasonable reunification services and should have been granted additional services and that the court abused its discretion in failing to require more frequent visitation. We deny the writ petition.

Background

Shawna is the child of petitioner and Ms. W. Shawna was born in November 2004 and placed in protective custody within a few days. At the time, Shawna's half-siblings Troy and Hailey were the subjects of a dependency case which was pending a contested jurisdictional hearing. In that case, petitioner had been residing with Ms. W., Troy, Hailey, and a male roommate. Petitioner, Ms. W., and the roommate were all "getting high" at about 4:00 a.m. in July 2004 when Ms. W. and petitioner got into an argument and left the apartment. Later, two-and-one-half-year old Hailey carried one-and-one-half-year old Troy into the roommate's bedroom. Troy was unconscious. The roommate performed CPR, a neighbor called 911, and Troy was taken to the hospital. The petition filed as to Shawna outlined the allegations in her half-siblings' case including that Troy had ingested methamphetamine and had bruises and contusions of various ages all over his face and body. Troy's injuries included small puncture wounds on the bottom of his feet, a subdural hematoma and bruising on his penis, anus, and scrotum, and bruising and abrasions on his buttocks. The petition alleged that their mother, Ms. W., had no explanation for Troy's injuries and had "failed to protect Troy from being hit by the adults residing in the home." The petition included other allegations concerning domestic violence and substance abuse as to both petitioner and Ms. W.

At the time of the jurisdiction /disposition hearing concerning Shawna, in December 2004, Shawna was living in the home of a foster mother who was friends with the foster mother of Troy and Hailey so the siblings were having contact with each other several times a week. Ms. W. was serving a one-year county jail sentence for felony child endangerment based on Troy's circumstances. Petitioner had been arrested at the time Troy and Hailey were placed in protective custody but told the social worker that he was released after 60 days because there was insufficient evidence to charge him. He was participating in substance abuse testing on a voluntary basis through the department although he said that he did not have a problem with drugs or alcohol.

The report described petitioner's criminal history which included convictions for assault on a police officer and battery on a former spouse. Petitioner had two other daughters who were not living with him. He had not had contact with one daughter for over a year. She was living with her mother. His other daughter had been placed for adoption.

The report noted that petitioner was "making great effort towards being compliant with his Family Reunification Case Plan, and has initiated most of the recommended services so far." These recommended services included substance abuse services, a parenting program, a 12-step program, and a domestic violence assessment. The social worker was concerned that petitioner had a history of substance abuse that he was denying. The social worker also expressed concern that petitioner had a history of domestic violence in his previous relationships and did not recognize how this impacted and endangered children. Furthermore, the social worker was concerned that Troy had been severely physically abused while in the care of Ms. W. and petitioner but that both were minimizing the severity of Troy's injuries, did not have an explanation for them, and minimized their responsibility for them. The social worker recommended that no reunification services be offered to Ms. W. The social worker recommended that family reunification services be provided for petitioner. The matter was continued and petitioner continued to work on his case plan.

In an addendum filed February 10, 2005, the social worker stated that petitioner had said that as to the recommendations that he participate in a drug treatment program and take Parenting Without Violence classes, petitioner "stated that he needed to discuss both recommendations with his attorney because he did not believe that he had any problems with drugs or with violence against children." The social worker characterized this stance as "profound denial." In order to "shed some light" on this posture, the social worker had reviewed "six volumes" of petitioner's family's history with Child Protective Services. According to these records, petitioner's maternal grandmother abused and neglected petitioner's mother before "abandoning her to the foster care system." Petitioner's father had long-standing problems with drugs and alcohol and a criminal history that included assault, assault on a police officer and "wife beating." The report said that petitioner's father "was reported to have beaten him and his mother to have slammed him against walls." By the time petitioner was nine years old, the family had been referred to Child Protective Services over 25 times concerning severe neglect, physical and emotional abuse, and ongoing domestic violence. Petitioner and his siblings were made dependents of the court. When petitioner was 10 years old he was in a special class because of his serious behavior problems including physical aggression. As a young adult he had numerous arrests for battery, including battery on a girlfriend, on a spouse, and on his father. The report stated, "No matter how much [petitioner] wants to avoid re-enacting the abuse he experienced throughout his childhood, if he is not provided intensive re-education and new tools to help him cope, it is highly likely that he will re-enact the abuse he experienced, in spite of his best intentions to the contrary."

The social worker said that the roommate of petitioner and Ms. W. had accepted responsibility for leaving the methamphetamine around that Troy had ingested and shaking him to revive him when he discovered that the child had stopped breathing. The roommate denied having caused Troy's other serious bruising all over the child's body. He said that Ms. W. had asked him to make petitioner "quit torturing the children." The social worker observed that it was "likely that we will never know which one of the three adults" living with Troy had caused his bruises. However, the social worker believed that petitioner would benefit from a 52-week Parenting Without Violence class given that petitioner "has been both a victim and a perpetrator of violence throughout much of his life, and given the possibility that [petitioner] could be responsible for some of the bruising that Troy suffered while living in the home with him."

Another addendum, also filed February 10, 2005, said that Hailey had begun to talk about some of her experiences while living with Ms. W. and petitioner. The foster mother of Hailey and Troy said that, in response to the foster mother's explanation that Hailey and Troy could stay in a home where Troy "didn't get hit and didn't get 'owies'" Hailey had said, "But [Ms. W.] didn't give Troy his owies, Shawn did."

On February 10, 2005, the parties submitted the matter and the juvenile court sustained an amended petition under section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling]. Ms. W. waived reunification services. The juvenile court allowed petitioner supervised visitation with Shawna twice per week for one hour per visit with the social worker having the discretion to increase visitation. Petitioner was given reunification services and his case plan now included that he participate in and successfully complete a certified 52-week Parenting Without Violence program.

The minute order from the interim review hearing in March 2005 states that the "court encourages the social worker to increase the duration of the father's visitation." An Interim Review report filed in May 2005 stated that someone from the Parenting Without Violence Program who had met with petitioner three times had said that petitioner was "not appropriate" for the group because "he doesn't fe[e]l like he's justified in going to the group" and "has also consistently denied any responsibility for abuse toward any child." A July 2005 status review report said that although petitioner denied any parenting responsibility for Troy and Hailey, he was "willing to say that there were things that were wrong, that he should have pointed out to [Ms. W.], or should have had a conversation about." Hailey had made other comments about petitioner hitting and biting Troy.[2] The social worker wrote that petitioner "stated 'that there was no CPS involvement regarding he or his siblings.' There are five case file volumes related to this family, which span from 1977 through 1993 and indicate that [petitioner] and four of his siblings were made dependents of Santa Clara County" in 1985.

Meanwhile, petitioner continued to work on his case plan. He had a few missed drug tests, but had many, many negative tests. He had participated in 12 sessions of individual counseling and the therapist reported that petitioner was cooperative, punctual, and attended regularly. The therapist recommended further counseling but petitioner had declined saying that he wanted to have completed this aspect of his case plan. He visited Shawna three hours per week and was consistently attentive, gentle, and affectionate with her. He was very aware of her likes, dislikes and needs, and Shawna seemed comfortable with him. The social worker from the visitation center suggested that his visits "be placed on the next level of leniency." In his relapse prevention plan, petitioner wrote, "I know that I will do what is right to keep [Shawna] happy, safe, and away from drugs. I am surrounded by my loving family, who do not tolerate drugs."

By mid-July 2005, petitioner had attended two Parenting Without Violence classes, having finally made it though the intake process. He was attending a drug treatment program regularly and consistently making progress on other aspects of his case plan. However, the social worker said that she believed Shawna would be at risk if returned to petitioner because he had not made significant progress in addressing "issues of violence." The social worker recommended that reunification services be terminated and the matter set for a section 366.26 hearing.

The matter was set for a contested six-month review but was continued many times to December 2005. In a December 2005 addendum report, the social worker said she had visited petitioner's home and saw that he had a crib, car seat and stroller and that there were no significant safety issues. The social worker talked to petitioner's mother, who said that Hailey and Troy were lying about petitioner being physically abusive toward them. She also said that petitioner's recently deceased father had been addicted to heroin, painkillers, and alcohol and had been physically abusive toward her and toward his children. She told the social worker that she missed him very much. The social worker remained concerned that petitioner denied having been physically abused as a child and having domestic violence in his adult relationships despite reports to the contrary.

In January 2006, before the continued six month hearing was completed, the Department filed a subsequent petition pursuant to section 342.[3] This new petition specifically alleged that petitioner had physically abused Troy and Hailey. The report prepared for the jurisdiction hearing on the new petition included information from the foster mother of Hailey and Troy. She reported that Troy had told her that petitioner had hit him with a bat. The foster mother also reported that Hailey had said that petitioner had given Troy "ouchies" and had bitten both children. Hailey's therapist described Hailey as "bright" and said that Hailey had told her about the biting and that, through her therapy, Hailey was now "able to understand the inappropriateness of an adult male biting little children in anger."

In April 2006, the court held the contested jurisdictional hearing on the section 342 petition.[4] The foster mother of Hailey and Troy testified that both children engaged in tantrums and aggressive behavior, such as kicking, hitting, and biting, when they first came to her. At the department's request, she kept a log of statements made by the children. She testified that when Hailey said that Shawn gave Troy "owies" she asked Hailey how Shawn did this. She testified that Hailey's answer was, "Shawn hit here. Hit Troy here and here. . . . She pointed to her arms, her legs, her bottom and her head."

Petitioner testified and said that he never hit Troy "to hurt him." He said, "I would maybe take his hand and say don't do that." Petitioner testified that he never used drugs when visiting Ms. W. three to four times a week and she had denied to him that she was using drugs. Troy and Hailey were usually asleep in bed when he visited. The only injuries he ever saw on the children were a bruise on Troy's wrist, one on the back of his head, and a scratch on his nose. He never saw anyone hit Troy. Petitioner acknowledged having a domestic violence conviction and a battery conviction which resulted from an altercation with his father during which his father called the police. He said that he had been through "several anger management programs" including three or four as a minor.

Hailey's therapist testified that during "post traumatic play that related to the violence that she had seen in her family" Hailey had reported to her that "someone named Shawn had bit her and bit her brother and made him cry." The therapist believed this Shawn to be petitioner. Hailey had a history of biting Troy and others.

The Chief of Pediatrics at Valley Medical Center testified that when Troy was taken there he showed signs of shaken baby syndrome and had bruises and puncture marks that "encompassed virtually every surface of his body." The bruises were of different ages and were consistent with intentional child abuse. The bruises on his face and hands were "very visible" to anyone. The doctor testified, "You couldn't cover these up, and these bruises were visible from across the room. You could not miss them." The doctor said the Troy's injuries fit the definition of torture.

The social worker testified that Ms. W. had said that petitioner did not abuse the children but that he was allowed to "tap" the children to discipline them. Ms. W. testified to domestic violence Hailey had witnessed before Ms. W. became involved with petitioner. She said that petitioner never hit her and only hit the children on the hand. She denied asking her roommate if he "could help get [petitioner] to stop torturing the children." Hailey testified that petitioner kicked and bit Troy.

At the conclusion of the hearing, the juvenile court made a lengthy statement reviewing the evidence that had been presented and concluded that the allegations concerning petitioner abusing Troy and Hailey were true. The sustained allegations included that petitioner repeatedly inflicted physical harm on Troy prior to his removal in July 2004, that the physical abuse included numerous occasions when petitioner hit and bit Troy, that petitioner was residing in the home and was present in the home prior to Troy ingesting methamphetamines, that petitioner was using methamphetamines with Ms. W. and their roommate in the days prior to the removal of Troy and Hailey, and that petitioner failed to protect Troy from abuse and failed to seek medical care for him.

The next review hearing was held in April 2006.[5] At the outset, the court said that "all the evidence which I received so far will be taken into account as we move into this hearing." John Murphy testified as an expert in facilitating child abuse prevention strategies and was involved with petitioner's Parenting Without Violence classes. He worked with petitioner during the four weeks of his orientation and 34 subsequent sessions. Murphy periodically evaluated petitioner's progress, and, at one point, placed him on probation and gave him some assignments. Petitioner did these assignments quickly and well. After attending 31 sessions, petitioner had only made just a little bit of progress. The expert testified that petitioner was not able to take what he had learned in the class setting and transfer it to his life. He said, "I'm not sure what was blocking him from being able to do that . . . I feel there was a lot of opportunity to have practice in that. It's something we worked on for I know close to 20 weeks at that point, so I'm not sure that it's just a case of needing more practice. Possibly there's an issue of motivation as well." Murphy was concerned about petitioner's lack of empathy. Murphy testified that the goal of the program was "to improve the safety of family members." He said that petitioner still needed to make "substantially more progress."

The social worker testified as an expert in risk assessment and placement of abused children. She said that petitioner "having grown up in a family with a lot of domestic violence and turmoil can have big implications as far as his ability to parent. And I think it's important that he address that area and how it may impact today." She reviewed petitioner's history as a victim of child abuse and said that petitioner continued to deny having been a dependent of the juvenile court.

The social worker observed that petitioner's current girlfriend was pregnant with his child. She said that petitioner had done "pretty well" with his supervised visitation of Shawna. When asked whether there was any detriment to returning Shawna to petitioner, she said "there are several risk factors. The fact that he hasn't made substantive progress in his parenting without violence and address the issues of why Shawna was removed. . . . [H]e doesn't appear to be grasping that material. That is a very key part of his case plan." She was concerned that petitioner "tended to look back fondly on his father" rather than acknowledging the abuse that the dependency records, as well as a report made directly by petitioner when he was 14 and statements by petitioner's mother, confirmed. She reviewed the services that the Department had offered petitioner and acknowledged that this had been one of the most labor intensive cases she had ever had.

Petitioner testified and, when asked if he continued to deny physically abusing Troy or Hailey, petitioner replied, diplomatically, "I believe the judge made a decision in his beliefs and my beliefs may be different." He testified that he had completed 40 Parenting Without Violence classes, 60 to 80 Health Realization classes, and 12 sessions of individual counseling. Petitioner testified that he did not recall being physically abused by his father or seeing his father physically abuse petitioner's mother or siblings. He said that his father was "very, very loving." He said that his father was "really strict from the [Viet Nam] war" and drank "a lot" but was "a real good dad."

Petitioner testified that when he visited Shawna she would "run straight to me. Just really cheerful, really bright kid." He said that he loved Shawna and she loved him. In preparation for having Shawna live with him, he had a "carseat, potty trainer, stroller, baby crib, highchair, several toy boxes, several hundred toys, lots of different clothes for her." Petitioner was working part-time as a cable installer and part-time for American Campaign Services gathering petition signatures. He planned to find child care through referrals from social services or with his aunt, who was a nanny. Petitioner did not agree with the social worker's recommendation that reunification services should be terminated. He believed that "from the get go" the social worker had "made up her mind" to terminate services.

Counsel for the Department argued that "this father has received more services than virtually any parent in our system." Counsel acknowledged that petitioner had visited Shawna regularly and that the visits had been, "for the most part," appropriate. Counsel acknowledged petitioner's progress in drug treatment. Counsel noted, "He is, in fact clean and sober. He's participated in his programs and he has tested consistently." Counsel argued that petitioner "has not even begun to address the violence in his family of origin." Counsel said that petitioner "has a triggerquick temper when he is under stress or doesn't get his way." Counsel for Shawna agreed that reunification services to petitioner should be terminated.

Counsel for petitioner said that petitioner felt that the finding that he had abused Troy was the result of "almost a railroading job." Counsel argued that petitioner had completed as much of his case plan as he could given that he continued to deny perpetrating the violence on Troy. Counsel recognized that because petitioner had not had unsupervised visits with Shawna that it "may be a stretch" to have Shawna immediately placed with him but that "nothing . . . prevents this Court from ordering a family maintenance plan and making a transition plan over 60 to 90 days."

The juvenile court terminated reunification services, finding that petitioner had received reasonable reunification services and that Shawna would be at risk if returned to petitioner. The court set a selection and implementation hearing for a permanent plan and granted petitioner supervised visits two times per week.

Discussion

The hearing at which the challenged orders were issued began as a six-month review but, because of continuances, became an 18-month review hearing. The juvenile court was required to order return of the Shawna to the physical custody of the petitioner unless the court found, by a preponderance of the evidence, that the return of Shawna would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.22.) The Department had the burden of establishing that detriment. (Ibid.) In making its determination, the juvenile court was required to review and consider the social worker's report and recommendations and to consider the effort or progress, or both, demonstrated by petitioner and the extent to which he availed himself of services provided. (Ibid.)

At-Risk Finding

Petitioner contends, "The court erred in failing to return the minor to the father because substantial evidence did not support a finding the minor would be at risk in the father's care." Citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, he argues that the "lack of an admission" to the allegation that he had abused Troy and Hailey "is insufficient to deny him custody of the minor."

In Blanca P., supra, 45 Cal.App.4th 1738, the four children were initially detained because the mother had struck and injured one of them. A petition was sustained based on this event of "excessive corporal punishment," and the children were placed in foster care. (Id. at p. 1742.) While the children were in foster care, some rather ambiguous evidence suggesting that one of the girls might have been sexually abused by the father came to light. (Ibid.) A subsequent petition was filed alleging that the father had sexually abused that child. (Ibid.) At the hearing on that petition, the ambiguous evidence in the social worker's report was countered by the father's testimony that he had not sexually abused the child. (Id. at p. 1743.) The judge presiding over that hearing had not reviewed the supplemental petition and was initially under the misimpression that the sexual abuse allegation had already been found true. (Id. at p. 1744.) After being apprised that the allegation had not yet been found true, the judge readily made a true finding. (Id. at pp. 1744-1745.)

A subsequent investigation by an expert found no support for the sexual abuse allegation, and the father continued to deny that he had sexually abused the child. (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1746.) Both the mother and the father completely complied with their service plans. Nevertheless, the case proceeded to the 18-month review hearing, and the social worker opined that the father continued to pose a risk to the children because he refused to admit the sexual abuse allegation and therefore could not learn skills to prevent a reoccurrence. (Id. at pp. 1746-1747.) The court made detriment findings based on the social worker's assertion that the parents posed an unacceptable risk because they refused to acknowledge that the sexual abuse had occurred. (Ibid.)

On appeal, the Fourth District first considered whether there was substantial evidence to support the detriment findings separate from the truth of the sexual abuse allegation. (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1747.) "In deciding whether it would be detrimental to return a child, the easy cases are ones where there is a clear failure by the parent to comply with material aspects of the service plan. . . . [¶] The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent." (Id. at p. 1748, fns. omitted.)

The Fourth District concluded that detriment findings could only be properly based on "specific, objective factors" rather than "mere subjective impressions." (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1750.) In the absence of the sexual abuse allegation, the juvenile court's detriment finding in Blanca P. was supported only by the social worker's subjective impression that the mother had not "internalized" what she had learned in the parenting classes, and therefore the detriment finding could only be based on the truth of the sexual abuse finding. (Id. at p. 1751.)

The Fourth District decided that the juvenile court's previous finding regarding the sexual abuse allegation was not conclusive. "[C]ollateral estoppel effect should not be given, at a 12 or 18-month review, to a prior finding of child molestation made at a jurisdictional hearing when the accused parents continue to deny that any molestation ever occurred and there is new evidence supporting their denial." (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1757.) The case was remanded for a new 18-month hearing at which the court was to reconsider the truth of the sexual abuse allegation. (Id. at pp. 1759-1760.)

This case differs markedly from Blanca P. in several respects. The allegations of Troy's physical abuse were based on actual injuries, not ambiguous evidence. Nothing in the record calls into question the juvenile court's finding that petitioner abused Troy. Young Hailey's revelations, in therapy, to her foster mother, and in her testimony, that petitioner had been the one who hurt Troy may have provided some of the basis for the court finding the allegations of the section 342 petition to be true, but, from the time of Shawna's removal, there was never any question but that Troy had been seriously physically abused in ways that would have been obvious to any adult having contact with him. Shawna would have been at risk in petitioner's care not just because he continued to deny having abused Troy or was seemingly oblivious to the severity of his injuries. Rather, petitioner denied having been physically abused himself, despite volumes of evidence to the contrary. This goes far beyond anyone's subjective impression that petitioner had not internalized what he could have learned in the Parenting Without Violence classes. Petitioner's denial of the well-documented abuse he had suffered and witnessed in his family home, some of which he had reported to the Department himself as a young teenager, prevented him from making good use of the services provided, particularly the Parenting Without Violence classes. This, coupled with his loving statements about his father, demonstrate either dissembling or an alarming lack of insight into what constitutes physical abuse and what its impact on a child can be. Thus, specific, objective factors, rather than subjective impressions, provided a basis for the expert's opinion that petitioner had not made sufficient progress and supported the juvenile court's conclusion that Shawna would be at risk in petitioner's care.

Petitioner argues, "Father participated regularly in his court ordered treatment programs and made substantive progress. Therefore, the court erred in failing to return the minor to his care." "The purpose of the [reunification] plan is to overcome the problem that led to removal in the first place. [Citation.]" (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1748.) While evidence of parental failure "to participate regularly and make substantive progress in court-ordered treatment programs" is "prima facie evidence that return would be detrimental" (§ 366.21, subd. (f)), evidence that a parent had fully complied with or completed the treatment plan does not create a presumption that it is safe to return a child to parental custody. Reviewing courts have recognized that therapy and parent education may not be sufficiently effective in reducing risk where a parent is unwilling to acknowledge his or her conduct or the causes that resulted in a child's removal from parental custody. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 553 ["Reunification and successful treatment cannot occur until [the mother] accepts responsibility for her actions"]; In re Jessica B. (1989) 207 Cal.App.3d 504, 516 ["Traditional treatment is of limited value until the abuse is admitted"].) Petitioner was unable or unwilling to acknowledge the domestic violence and child abuse in his family of origin, or to own up to having participated in domestic violence in his adult relationships, or to indicate any awareness of the obvious and extensive physical abuse of Troy. Despite petitioner's good efforts in complying with his case plan, he did not show sufficient improvement in acquiring the parenting skills most crucial under the circumstances of this case. Sufficient evidence showed that the risk to Shawna had not been sufficiently reduced.

Reunification Services

Petitioner contends, "The court erred in denying father additional reunification services because substantial evidence does not support a finding that he received reasonable reunification services." Petitioner argues, "Father did not receive reasonable reunification services because the services ordered for the father were focused on the findings in the original petition which did not identify the father as a perpetrator of abuse. . . . Therefore, it was unreasonable to wait until thirteen months later to file a petition alleging father was the perpetrator of abuse and then rely on the new jurisdiction findings to conclude that father did not make substantive progress on his service plan because he did not admit to causing the abuse the court just adjudicated."

We disagree with petitioner that petitioner's failure to admit having abused Troy was the sole factor in determining that he had not made substantive progress on his plan. Although at the time petitioner was first offered services it had not been proven that he was the member of the household who had abused Troy, it was appropriate to include the program in his case plan under the circumstances. As early as February 2005 this plan was recommended to petitioner and he said that he did not believe that he should have to participate in it. Furthermore, given petitioner's testimony, the reports from the program, and the number of weeks he participated in it, it does not appear likely that his position on these issues would have been any different had he begun the program earlier or participated in it for a longer period of time.

Petitioner argues that he did not receive reasonable services "because the social worker failed to increase his visitation with the minor." Shawna was removed shortly after birth and never lived with petitioner. In July 2005 he was visiting with her twice per week for a total of three hours. By November 2005, he was having supervised visits with Shawna in his home. By the time of trial, petitioner was having three, two-hour visits per week.

Petitioner cites In re David D. (1994) 28 Cal.App.4th 941. In David D., mother voluntarily placed her children in foster care because she was unable to care for them due to personal stress in her life and her physically abusive husband. (Id. at p. 943.) At the time, her children were ages one and one-half, two and one- half, and four. (Ibid.) During the reunification period, mother had regular visits with her children, and was eventually allowed unsupervised overnight visits. (Id. at pp. 944-945.) Mother had been attending parenting classes, counseling and a domestic violence presentation; additionally, she had maintained full-time stable employment. (Id. at p. 944.) Unfortunately, half-way through the 12-month reunification period, the mother attempted suicide. (Id. at p. 945.) From this point on, mother was no longer provided with proper visitation or reunification services and the referee suspended visits and phone contact. (Ibid.) At the permanency planning hearing, an expert testified the minors were psychologically and emotionally attached to their mother and would benefit from a continuing relationship with her; she also testified that cutting off contact with their mother would be detrimental to the children. (Id. at p. 947.) At the section 366 .26 hearing, the social worker testified that, based on one, two-hour visit, she did not believe a continuing relationship would be beneficial to the children because there was no bond, and experts gave conflicting testimony on whether it would be detrimental for the children to cut off all visitation with their mother. (Id. at pp. 950-951.) Ultimately, the referee found the minors adoptable and terminated parental rights. (Id. at p. 951.)

The appellate court reversed, criticizing the juvenile court and social worker for ceasing all efforts to help mother reunify with the children after her depression resulted in an attempted suicide. (David D., supra, 28 Cal.App.4th 941at p. 952.) The court held the best interests of the children were ignored by the juvenile court, impeding both reunification and parental contact generally by suspending visitation, ignoring the recommendations of court-appointed experts regarding the minors' bond with their mother, terminating reunification services, and unreasonably limiting visitation after the termination of reunification services. (Id. at p. 955.) The court stated, "[t]he injustice is particularly acute in light of the [juvenile] court's own observation of the potential for a statutory exception in this case which would have precluded adoption. By restricting the visitation to [a] final meeting, the court ensured the 'regular visitation' necessary to satisfy the statutory exception could not be satisfied. [Fn. omitted.]" (Ibid.)

In David D., supra, 28 Cal.App.4th 941, the juvenile court recognized the strong like likelihood that the mother would qualify for an exception to termination of parental rights yet undermined that very opportunity and, in the Court of Appeal's words, impeded reunification and continued contact by suspending visitation. Here, the juvenile court expanded visitation during the reunification period, doubling it during the course of the dependency to six hours per week. Although petitioner may have wanted more visits or longer visits, the visitation order here was well within the court's discretion.

Visitation

Petitioner challenges the juvenile court order limiting his visitation pending the section 366.26 hearing to supervised visits two times per week for two hours. Again relying on David D., he contends, "The juvenile court abused its discretion in failing to require more frequent father/child visits." He argues, "Even though the court terminated reunification services to father it was not allowed to so restrict his visits with the minor so as to effectively terminate the relationship even before a section 366.26 hearing addressed that issue, especially because there was no showing of detriment in allowing the visits to be more frequent."

The mother in David D. had a previously established stronger, loving, parental relationship with her children, which she continued to maintain after she voluntarily placed them in foster care. Here, petitioner has never lived with Shawna or occupied a parental role in her life. In David D., juvenile court recognized the strong likelihood that mother would qualify for an exception to termination yet suspended visitation. Here, visitation is twice per week for two hours, certainly sufficient to ensure the regular visitation necessary to satisfy the statutory exception should it be otherwise applicable. Considering the entire record, it does not appear that the juvenile court's visitation order was an abuse of discretion.

Disposition

The petition for extraordinary writ is denied.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The biological father of Troy and Hailey was named Sean, with the same pronunciation as petitioner's name, Shawn. The social worker showed Hailey a picture of this man and a picture of petitioner and asked her whether one of the two men had given Troy his "owies." Hailey "immediately and without hesitation" pointed to petitioner's picture.

[3] Section 342 provides, "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations."

[4] By the time of this hearing, parental rights to Troy and Hailey had been terminated.

[5] Shawna was removed shortly after her birth. When the child is under the age of three, family reunification services are limited to six months unless the court finds a substantial probability that the parent can provide a safe home if services are extended. (§ 361.5,subd. (a), 366.21, subd. (a).) The six month review hearing in this case was originally scheduled for July 2005 but was pending for months before it began in April 2006.